By Sweta Rath, Symbiosis Law School
“Editor’s Note: Judicial Activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. The author has explored the concept of judicial activism under the scope of Article 21 of the Indian Constitution.”
JUDICIAL ACTIVISM UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA
Judicial Activism per se does not circumscribe a particular set of definitions. Its concept is not restricted in nature because it has become an ever-evolving part of our governance. The Constitution of India, for the common man is the bible which the entire country abides by but lately by means of Judicial Activism, we have come to understand that it is not static in nature because the distinguished and perceptive judges seated at the apex court and the various high courts have progressed by analysing, interpreting and giving the same words written in the constitution a different meaning. This has been reflected by way of various landmark judgements which are beginning to change the functioning of the Indian Legal scenario.
In Nixon M Joseph v Union of India[i] K NARAYANA KURUP J has expressed a firm opinion that it is necessary that the judge should not allow his position to be compromised at any cost. Justice may not only be done but seen to be done. In his remarks he mentioned,
“The general public reposing absolute faith in the judiciary, see in it, justifiably an institution that can rein in if not eliminate, the rapacity, nepotism and corruption especially at high places which have come to be associated with the governance. The judiciary should continue to merit the exalted position it occupies in the minds and hearts of the people as the “saviour of democracy”. It cannot be gainsaid that the one necessary condition for this is its independence. Independence in the sense free from the executive, meaning the bureaucracy and politician interference and influences of every type.’[ii]
ORIGIN AND CONCEPT OF JUDICIAL ACTIVISM
In Ancient England, before the 1700s, the judges were always at the mercy of the King. They could be dismissed at the Crown’s will. This led to the blind and unwilling submission before the Crown which generated the theory of “REX IS LEX”[iii]. However the position regarding the security of judicial tenure is now secured by statutes.[iv] The point that was observed was that, for the well functioning of the state, it is very important that the independence of the judiciary should not only be on paper but should be followed in spirit.
The constitution of India, establishes the fact that the judiciary plays the important role of interpreting and applying the law and adjudicating upon controversies between one citizen and another and between the citizen and the state. Its prime responsibility is to maintain and safeguard the rule of law within the constitutional framework.
In the nascent years after the formation of the Constitution, the Supreme Court focussed on nurturing the integrity of the constitutional principles, separation of powers and keeping a check over all the organs of the government. The Supreme Court and the High Courts were ever-vigilant in their review of executive actions, hence ensuring to the public requisite protection against excesses of authority or abuses of power. They were equally vigilant in their review of legislative actions, both in respect of lawmaking as well as in balancing legitimate parliamentary powers, (necessary for the effective functioning of Parliament) with parliamentary privileges, notably that of punishing for contempt
Black’s Law Dictionary[v] defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions”.
In simple words, judicial activism is an exercise whereby the judiciary fills up the void where the Legislature fails to perform its duties. Primarily the duty of the court was to decide upon the cases that were put forward before them. But after the 1970s, the Supreme Court realised that it needs to venture more into the society so as to reach out the people and perform its function in the true spirit. There were multiple factors such as arbitrary behavior of bureaucracy and political leadership, growing hopes of the people with judiciary and impartiality exhibited by the judges which were responsible for the growth of judicial activism in India. For the purpose of the paper, the concept needs to be restricted to activism practiced under article 21 which will broadly cover these aspects
- The unique and discrete qualities brought by the judges with respect to article 21 by means of judicial activism.
- The Expansion of article 21 by means of Judicial Creativity: exploring RIGHT TO PRIVACY.
ARTICLE 21 READ UNDER A NEW LIGHT BY WAY OF JUDICIAL ACTIVISM: ROAD FROM A.K GOPALAN v STATE OF MADRAS TO MENAKA GANDHI v UNION OF INDIA
It took 28 years for the Indian Judiciary to reach a milestone in deciphering their true capacity and outreach. During the initial stages of drafting of the Indian Constitution, there was an apparent influence of United States Supreme Court Justice Felix Frankfurter on Constitutional Adviser B.N. Rau, who travelled to Britain, Ireland, the United States, and Canada in 1947 to meet with jurists regarding the drafting and framing of the Indian Constitution. He was told that judicial review was undemocratic and burdensome the judiciary because it gave unnecessary empowerment to judges. So they removed the substantive due process clause because it could have IMPEDED “social legislation”. So due process clause was replaced with “procedure established by law” which was borrowed from Japanese Constitution.[vi]
A K Gopalan v State of Madras was a significant decision because it represented the first case where the court meaningfully examined and interpreted key fundamental rights enlisted in the constitution including article 19 and 21.[vii] A writ of habeas corpus was filed. The contention was whether under this writ and the provisions of THE PREVENTIVE DETENTION ACT, 1950, there was a violation of his fundamental rights which were article 13, 19, 21 and 22. The counsel on behalf of the petitioner argued that the right to movement was a fundamental right under article 19 and hence the defence counsel must prove that the law of preventive detention was a reasonable restriction as per the five clauses of article 19(2).
Judge restricted the scope of fundamental rights and by reading them in isolation of article 21 and 22 which provided guidelines for preventive detention. A foreign precedent like cases of UK and US were used in limiting the scope of article 21. Justice Kania said that the term due process prevented the courts from engaging in substantive due process analysis in determining the reasonableness of the level of process provided by the legislature. He remarked:-
The word “due” in the expression “due process of law” in the American Constitution is interpreted to mean “just,” according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is “due” from otherwise, according to law. The deliberate omission of the word “due” from article 21 lends strength to the contention that the justifiable aspect of “law”, i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word “due”, the limitation imposed by the word “procedure” and the insertion of the word “established” thus brings out more clearly the idea of legislative prescription in the expression used in article 21. By adopting the phrase “procedure established by law” the Constitution gave the legislature the final word to determine the law.
Fazl Ali’s dissent broadly construed the provision “procedure established by law” in Article 21 to encompass higher principles of natural law and justice and not just statutory law. he said that the Indian Constitution intended to incorporate the same language as the Japanese Constitution and encompass “procedural due process” conception, he still cited to American, British and foreign precedent to support a much more expanded view of due process. They were based on the principles of Natural Justice. Fazal Ali highlighted a series of US decisions; the US Supreme Court recognized that the word law does not exclude certain fundamental provisions. Drawing on British and US legal sources he argued for incorporating procedural due process into article 21, guided by principles of Natural Justice in accordance with universal, transactional and legal norms.
So, in conclusion, Gopalan case held two major points:
- 19, 21 and 22 are mutually exclusive. Art 19 was to not apply to a law affecting personal liberty to which art 21 applies. In the above case, the restrictions under article 19 applied only on free people. Unless the state arrested a person for making a speech, holding an assembly, forming an association or for entering a territory, the arrest had to be EXAMINED under article 21.
- A “LAW” affecting life and liberty could not be declared unconstitutional merely because it lacked natural justice or due procedure. Hence article 21 provided no immunity against competent legislative action.
In Kharak Singh v State of Uttar Pradesh[viii] the petition under Article 32 of the Constitution of India challenged the constitutional validity of Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon police officials by its provisions on the ground that they violate the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution of India. On the basis of the accusations made against him, he had police constables entering his house and shout at his door, waking him up in the process. On a number of occasions, they had compelled him to accompany them to the station and had also put restrictions on him leaving the town.
The judges made a breakthrough while interpreting and finding the connection between article 19 and 21 by remarking that:
- If a person’s fundamental right under Article 21 is infringed the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this petition no such defence is available, as admittedly there is no such law.
- So the petitioner Kharak Singh could legitimately plead that his fundamental rights, both under Articles 19(1)(d) and 21, were infringed by the State. Hence, on these grounds the petitioner Kharak Singh was entitled to issue of a writ of mandamus directing the respondent- State of Uttar Pradesh- not to continue visit to his house.
Here, the majority adopted a restrictive conception of liberty that only extended to direct infringement of the freedom of movement, and refused to recognize the existence of a right to privacy. However, this theory which was the minority judgment of J Subba Rao went on to become the majority judgment in Satwant Singh Sawhney v Union of India.[ix] Satwant Singh the petitioner was a manufacturer; importer and exporter who was asked to surrender the passport on the ground that he was likely to leave India to avoid a trial. For the first time, the Court was able to author a majority decision and binding precedent in the area of personal liberty that built and relied on foreign precedents dealing with the substantive due process.
Moreover, Chief Justice Subba Rao used combination of American precedents, along with the opinions in Kharak Singh, to rule that the term “personal liberty” is as broad in India as the term “liberty” is in the 5th Amendment of the U.S. Constitution. The court recognised that right to life and liberty could be taken away by a “procedure established by law”. However, it canceled the government’s order to the petitioner to surrender his passports. Its judgement was found on the limited ground of the failure to provide for any procedure regulating the denial/surrender of passports under the Indian Passports Act, 1920. The court’s objection was based on the absence of a procedure rather than the merits of the existing system. [x] Soon after the Satwant Singh Judgement, the parliament enacted the Passport Act, 1967 to regulate how passports would be issued, revoked, impounded or revoked- matters on which legislation did not exist earlier.
India’s democratic structure following the Emergency was shaken to the core as it had severely impinged on a person’s fundamental rights. The citizens were resentful and there was severe dishonesty on the part of the government along with the crippled nature of the highest court in land.[xi] With its decision in Maneka Gandhi v Union of India[xii], the Supreme Court restored the citizen’s faith in the judiciary. The 3 landmark judgements were depicting a great change in the thought process of the judiciary and had set the stage for Judicial Activism to be introduced.
The Supreme Court not only broadened the meaning of “personal liberty” but also adopted the theory of “due process” in “procedure established by law”. The court recognised that when a law restricts personal liberty, a court should examine whether the restriction on personal liberty also imposed restrictions on any of the rights given by Article 19. The Court held that personal liberty includes “a variety of rights which go to constitute the personal liberty of man,” in addition to those mentioned in Article 19, and that one such right included in “personal liberty” is the right to go abroad.[xiii] The court also held that according to the “audi alteram partem” theory, impounding Mrs Gandhi’s passport without giving her a hearing violated procedure established by law. These were principles of natural justice and fair procedure. The court had to decide whether Mrs. Gandhi was entitled to a hearing before her passport was impounded. It was resolved that as there was no post decisional hearing, the impounding was UNCONSTITUTIONAL AND VOID
Amongst the fundamental rights, article 14, 19 and 21 of the constitution- composing the “golden triangle” have been invoked most often to declare legislation or arbitrary state action invalid. In this particular case, there was conflict whether the right to travel abroad formed a right to personal liberty under article 21. The Supreme Court departed from the stereotyped notion and held that fundamental rights form an integrated scheme under the constitution. Emphasising the need to read Part III of the Constitution in a holistic manner, the SC said that the mere fact that a law satisfied the requirements of one fundamental right did not exempt it from the operation of other fundamental rights. The majority of the seven-judge bench stated that any procedure established by law under article 21 would have to be “fair, just and reasonable” and it differed from the Satwant Singh case by establishing that even in presence of a law, an arbitrary law will not be considered. The Supreme Court after this judgement became the watchdog of the constitution instead of supervisors.
EXPANSION OF RIGHT TO LIFE BY MEANS OF JUDICIAL CREATIVITY: RIGHT TO PRIVACY
The above topic was an exhaustive evaluation of judges and their path breaking performance with regard to changing the dynamics of article 21. American Constitution’s concept of Due process was finally embodied in the words “procedure established by law”. The current topic will deal with the expansion of the provision due to the revolution created by the MANEKA GANDHI JUDGEMENT. The concept of PIL[xiv] started taking shape which was pioneered by the great Justice P.N Bhagwati who took cognizance of the fact that in certain circumstances, A PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. Post Maneka Gandhi’s case, the Supreme Court ascertained that,
“In order to treat a right as a fundamental right, it is not necessary that it should be expressly stated in the constitution as fundamental right. Political, social and economical changes in the country entail the recognition of new rights. The law grows to meet the demands of the ever evolving society”
Hence the Supreme Court has found Article 21 to incorporate the substantive freedom that serves as means to remove major areas such as poverty, poor economic opportunities as well as systematic social deprivation. A most significant feature of expansion of article 21 has been that many of the Non-justifiable Directive Principles have been converted into ENFORCEABLE FUNDAMENTAL RIGHTS by the hands of judges. Guarantees of economic opportunities and protection against social deprivations were established in various decisions:
- Quality of life
- Right to Livelihood
- Right to medical care
- Right to Die
- Sexual Harassment
- Ecology and Environment
- Right to Privacy
RIGHT TO PRIVACY
Out of all the above headings, the current topic will discuss the “Right to Privacy “aspect in great detail. The constitution does not grant in specific and express terms any right to privacy as such Right to Privacy is not encumbered as a Fundamental Right in the Constitution. However, such a right has been culled by the Supreme Court from Art 21 and several other provisions of the Constitution read with the Directive Principles of State Policy.
As mentioned above, the Kharak Singh was the first of its own kind, to inaugurate the idea of “privacy” where issues were raised regarding implying the right to privacy from existing fundamental rights such as Article 19(1)(d) and 19(1)(e) and 21. During that time, J Subba Rao had commented
“The right to personal liberty takes in not only a right to be free from restrictions but also free from encroachments on his private life”
In 1965, the Supreme Court of India heard and decided State of UP v. Kaushaliya[xv]– a case which involved the question of whether women who are engaged in prostitution can be forcibly removed from their residences and places of occupation, or whether they were entitled, along with other citizens of India, to the fundamental right to move freely throughout the territory of India, and to reside and settle in any part of the territory of India.
In its decision, the Supreme Court denied them this right holding that “the activities of a prostitute in a particular area are so subversive of public morals and so destructive of public health that it is necessary in public interest to deport her from that place. The statutory restrictions imposed by the Suppression of Immoral Traffic Act on prostitutes, were upheld by the Court as constitutionally-permissible “reasonable restrictions” on their movements.
In 1972, the Supreme Court decided a case – one of the first of its kind – on wiretapping.
In R. M. Malkani vs State Of Maharashtra[xvi], the petitioner’s voice had been recorded in the course of a telephonic conversation where he was attempting blackmail. He asserted in his defence that his right to privacy under Article 21 had been violated. The Supreme Court declined his plea holding that “The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. The case had fallen in the PRE MANEKA era.
In Govind vs. State of Madhya Pradesh[xvii](1975), decided by a three-Judge Bench of the Supreme Court is regarded as being a setback to the right to privacy Jurisprudence where the judges established that surveillance is not an unreasonable restriction upon right to privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.
An interesting angle was brought about in the famous Naz Foundation case[xviii]. The petitioners argued ‘to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21 [which] can be abridged only for a compelling state interest which, in its submission, is amiss here’
The Court then disposed of claims that this invasion of privacy was justified within the exception to Article 21.
“While it could be “a compelling state interest” to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.[xix]
However this case suffered a huge setback when Supreme Court overturned the ruling of the Delhi High Court condemning homosexuality by holding Section 377 of the Indian Penal Code valid and demanding the legislature to take appropriate action pertaining to the abolishment of this particular provision. Right to privacy has been hence denied to anyone who commits the offence under Section 377.
A similar concept of ‘public interest’ would seem to apply when private companies disclose personal information without a person’s consent. Without delving into the issue in too much detail, it would suffice here to mention one of the most important cases to have come up on the issue. In Mr. X vs Hospital Z,[xx] a person sued a hospital for having disclosed his HIV status to his fiancé without his knowledge resulting in their wedding being called off. The Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to protect the public interest.
The Times of India reported that the law ministry is working on a proposal to make right to privacy a fundamental right in the Indian Constitution. [xxi]The right to privacy would include the right to confidentiality of communication, confidentiality of private or family life, protection of his honour and good name, protection from search, detention or exposure of lawful communication between individuals, privacy from surveillance, confidentiality of banking, financial, medical and legal information, protection from identity theft of various kinds, protection of use of a person’s photographs, fingerprints, DNA samples and other samples taken at police stations and other places and protection of data relating to individual[xxii].
SETBACKS IN JUDICIAL ACTIVISM
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.”[xxiii] Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
The Supreme Court of India enjoys far larger powers than any other apex court e.g. House of Lords in Britain or the Supreme Court in the USA. The court enjoys very extensive jurisdiction. It plays a very significant role in the administration of law and justice in the country. It is the final arbiter and interpreter of the constitution. People have favoured judicial activism over the legislature and in many instances like “Vikram Singh v State of Punjab”[xxiv] the legislature has overstepped its authority over the Judiciary. Hence it’s the prime responsibility of all the organs to find a balance and truly define the purpose of the horizontal system of governance in India
Formatted on 13th March 2019.
[i] AIR 1998 Ker. 385
[iii] “Law is King” as defined by Scottish Presbyterian minister Samuel Rutherford
[iv] O.HOO PHILIPS &PAUL JACKSON, CONST OF ADM.LAW 28-29, 386-387 (1987)
[v]Black’s Law Dictionary, West Group, Second Pocket Edition, 2001, p.380
[vi] Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, 28 Berkeley J. Int’l Law. 216 (2010). Available at: http://scholarship.law.berkeley.edu/bjil/vol28/iss1/7
[vii] Gopalan v. State of Madras, 1950 S.C.R. 88 (1950).
[viii] 1964 SCR (1) 332
[ix] Satwant Singh v Assistant Passport Officer, Government of India; AIR 1967 SC 1836
[x]S. P Sathe “Judicial Activism: The Indian Experience’, Washington University Journal of Law and Policy vol 6 (2001); p 29
[xi] Zia Mody; “10 Judgements that changed India”; Penguins Group India Private Ltd; Edition 1 Page 32
[xii]1978 AIR 597
[xiii] S P Sathe ; Judicial Activism in India- Transgressing Borders and Enforcing Limits; OUP India, 2nd Edition; Page 55
[xiv]Stands for Public Interest Litigation: Litigants must show that they were adversely affected by the impugned action or their rights have been severely violated. The issue must be capable of resolution through judicial process. It may happen that the person held in such illegal detention is not in a position to move the court and therefore a stranger or the next friend is given locus standi to move the court for such a writ. Such a stranger or next friend may trigger the judicial process after showing that the impugned action or law resulted in denial of a person’s liberty.
[xv]AIR 1964 SC 416
[xvi] AIR 1973 SC 157, 1973 SCR (2) 417
[xvii] (1975) 2 SCC 148
[xviii] 160 Delhi Law Times 277
[xx](2003) 1 SCC 500 40
[xxi] “Right to Privacy may become a fundamental Right”; Avantika Ghosh; The Times of India; June 4 2011
[xxiii]T. R. Andhyarujina; “Disturbing trends in Judicial Activism”;August 6 2012; The Hindu
[xxiv]CRIMINAL APPEAL NOs. 1396-97 OF 2008