ROLE OF JUDICIAL ACTIVISM IN THE INTERPRETATION OF ARTICLE 21

By Anonymous

Editor’s Note: Article 21 is, by far, one of the most widely interpreted articles of the Indian Constitution. This paper analyses the effect of the phenomenon that is judicial activism, and how far has this been the reason for such a wide and varied interpretation of Article 21.

Introduction

The traditional and predominantly Anglo-Saxon view about the function of the judiciary was that judges can only declare the law, the concept that judges might bring about changes or additions to the law were unthinkable. Lord Reid, a great English judge said, “There was a time when it was thought almost indecent to suggest that judges make law; they only declare it. Those with a taste for fairy tales seem to think that in some Aladdin’s cave there is hidden a common law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words, Open Sesame’. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales anymore.”[i]

But over the years it has become necessary for judges to abandon this restricted role and widen their scope during deciding cases. The lack of legislations on a number of pertinent issues and vague worded provisions have led the courts to give their own interpretations regarding the issues that came up, sometimes they widened the scope of provisions, sometimes they put forth altogether new guidelines to be followed. In the midst of this judicial activism evolved in India where the Judiciary already held some amount of power with the function of Judicial Review.

Judicial Activism refers to acts of the court in excess of, and beyond the power of judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for ‘activism’ as such on the Court. It is said to be an intrusion by the judiciary into the realms of the Legislature and Executive, a violation of separation of powers. But the inactivity and ineffectiveness of the other organs of the state have led to the Judiciary taking these drastic measures. The violation of basic human rights, misuse and abuse of some of the provisions of the Constitution and overall apathy in the governance of the country has necessitated Judicial Activism in India. These have drawn the attention of the courts and through the mediums of Public Interest Litigation and suo moto action; the courts have attempted to remedy them.

Thus it is not surprising when the Judiciary has time and again taken it upon itself to decide upon issues arising from one of the vastest fundamental right that the constitution provides i.e. Article 21.

Judicial Approach

Article 21 of the Indian Constitution reads thus:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The various connotations and interpretations that have been derived from this article include right liberty, education, clean environment, sleep, prisoner’s rights etc. All of these have been a result of Judicial Activism in the interpretation of this article. Thus Judicial Activism has been instrumental in widening the scope of this fundamental right and appending to the meaning it has in contemporary society. The pre and post-emergency judgements are seen to have a great difference between them; the emergency saw such a blatant violation of rights that post it the Judiciary took a stand and fulfilled its role as the protectors of the constitution.

For example, in A.K. Gopalan v. Union of India[ii] “procedure established by law” was given a very narrow interpretation and limited it to procedure as established by any statue. There was no scope to contend that laws which prescribed the procedure for deprivation of life and personal liberty should also be tested on the basis of reasonableness. Thus opposition of a law on the basis of principles of natural justice was not accepted in this case.

But later on, the courts decided in Maneka Gandhi v. Union of India [iii]that limitations have to be posted on the formation of laws deprived individuals of life and liberty, the procedure prescribed by the law should also satisfy the test of reasonableness, justice and fairness. Thus the trend that was observed was that the Judiciary was taking positive steps in the direction to establish that right indeed trumped might. The question of what is included in procedure established by law has been tackled by the court multiple times but this essay mainly deals with the instances of Judicial Activism regarding the interpretation of “personal liberty” and other areas such as right to education and right to a clean environment,

Thus there have been numerous cases decided upon the rights provided under Art 21 of the constitution, one of the widest interpretation was in Francis Coralie Mullin v. Administrator, Union Territory of Delhi[iv], where the Honourable Supreme Court stated that,

“The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

The issue of personal liberty has been one of the key areas of judicial activism under Article 21, it was taken into consideration in Kharak Singh, it arose out of the challenge to Constitutional validity of the U. P. Police Regulations which provided for surveillance by way of domiciliary visits and secret picketing. The bench relied on the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in Munn v Illinois, which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which the life was enjoyed.

This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of an eye or the destruction of any other organ of the body through which the soul communicated with the outer world. The majority held that the U. P. Police Regulations authorizing domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional. The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.

In Sunil Batra Etc vs Delhi Administration And Ors. Etc.[v], the Court held that prisoners were not denuded of their fundamental rights, like their right to equality or their right to life or personal liberty, beyond that taken away by the nature of the imprisonment itself. In this case the petitioner was a naxalite condemned to death sentence and was kept in solitary confinement while awaiting his appeal. The Court gravely frowned upon the solitary confinement of a prisoner on death row and held that even a prisoner was entitled to be treated according to the prison rules, and even the prison rules could not violate the prisoner’s fundamental rights such as rights to equality, of life, and of personal liberty.

For example, a prisoner certainly could not be subjected to inhumane torture during imprisonment. Prisoners are also entitled to other rights such as freedom of religion. Prisoners’ exercise of the fundamental rights is restricted only in so far as they are under detention.[vi] In Charles Sobhraj v. Supdt., Jail, Tihar[vii]the Supreme Court under this article ruled that the court had a right to intervene with prison administration when they contravened constitutional rights and committed transgressions to the injury of the prisoner.

In Prem Shankar Shukla v. Delhi Administration[viii] while dealing with the handcuffing of prisoners and other humiliations inflicted on persons in custody the Supreme Court, along with Article 21 applied Article 5 of the Universal Declaration of Human Rights 1984 which stated that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Thus personal liberty and dignity of prisoners and under trials was taken up by the courts to make sure that no grave injustice was committed on the way to carriage of justice. The court said that handcuffing is prima facie “inhuman, and, therefore unreasonable, is over-harsh and at the first flush arbitrary.” The court ultimately held that a person under trial for a non-bailable offence punishable with more than 3 years prison term should not be routinely handcuffed during transit from prison to court.

In Citizens for Democracy v. State of Assam,[ix] Kuldip Nayar – eminent journalist and president of Citizens for Democracy – wrote to the Supreme Court that he saw seven TADA detainees handcuffed and tied to a hospital bed in Guwahati. He said that this was done despite the fact that the room, in which they were being held, had iron bars, was locked and was guarded by a posse of armed policemen. Nayar wrote that he failed to understand how the Assam Government could treat people in this manner despite court directives to the contrary. The government in its defense said that the detainees were hardcore terrorists belonging to the United Liberation Front of Assam [ULFA] and many dreaded members of this organization had previously escaped from custody.

The Supreme Court again agreed that handcuffing was inhuman, unreasonable and arbitrary. The Supreme Court said it understood that the police and jail authorities have a public duty to ensure safe custody of prisoners and must prevent them from escaping. However, prisoners’ rights guaranteed by the Constitution cannot be trampled upon. While suitable measures can be taken to reduce the likelihood of detainees escaping, use of fetters or chains purely at the whims or subjective discretion of authorities is not permissible. As a rule, handcuffs or fetters must not be used on an under trial or on a convicted prisoner whether in jail or when being taken to court, without the authorization of a magistrate. This authorization may be given in cases where the police or jail authorities have a well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of custody.[x]

 One of the landmark judgements with this respect was Hussainara Khatoon’s[xi] case where the court declared right to speedy trial to be a part of Article 21. It led to prison reforms that made sure that no under-trial should be imprisoned for a period longer than the maximum punishment for the crime he/she is charged with. Again in Sher Singh v. State of Punjab[xii]  the court held that there would be no fairness in the procedure if there was no speedy trial of the accused. It decided upon the matter that when there has been inordinate amount of delay in execution of a death sentence, whether it should be set aside. The court agreed that delaying the execution was unreasonable an unnecessarily tormenting the prisoner, it was considered inhumane. But it is also true that till date there is dissent regarding the topic of speedy trial as disseminated by Fast-track courts, it is argued by the criticizers that while justice delayed is justice denied but too fast a trial can convict innocents or let the guilty walk scot-free.

Thus as a response, in P. Ramachandra Rao v. State of Karnataka it was held that while providing speedy trial to the accused, the court cannot impose bars of limitation beyond which trial would not proceed as it would something completely outside of the statutes and legislation. Thus the rights of prisoners, custodial violence and police brutality were given much thought and it was considered just in Nilabati Behra v. State of Orissa[xiii] to give compensation in a case of the same.

In Khatri v. State of Bihar[xiv] where a prisoner was blinded by prison authorities while torturing him, the Supreme Court talked about the importance of providing legal aid to needy persons, it observed that the government cannot escape its duty to provide legal aid by pleading financial or administrative instability. Its relevance was seen in the cases where the parties were rural and often illiterate; they were not aware of their rights and wouldn’t be in a position to request a lawyer. It was held that it was the duty of the judge or magistrate to inquire if the accused was in need of legal representation.

The issues of custodial violence and death have long plagued our justice system; at it was discussed at length in D.K. Basu v. State of West Bengal[xv], situations where arrests were made covertly, prisoners tortured so severely that they lost their lives were taken into consideration. Guidelines were laid down for the procedure to be followed during arrest of persons.

As in modern times the world progresses and women and men are competing in the same professional arenas, it has become quite common place to receive news of crimes of sexual violence and misconduct against women. The court have been quite sensitive to the same and in the case of State of Punjab v. Ramdev Singh[xvi] it was held by the courts that rape was immensely violative of the right to life and thus had to be dealt with seriously, swiftly and severely. This sensitivity towards women is what led to the landmark judgement of Vishakha v. State of Rajasthan[xvii] where a female Anaganwadi worker had been brutally raped and murdered. Here the Supreme Court held that sexual harassment of a woman at her workplace amounted to a violation of her right to life and gave a list of guidelines that were to be enforced till the time a comprehensive legislation was put in place for the same.

This was reiterated by the Supreme Court in Apparel Export Promotion Council v. A.K. Chopra[xviii]. Finally this instance of Judicial Activism has borne a fruit in the form of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 which protects women from sexual harassment of any form at their workplace.  Continuing with the practise of upholding women’s rights, in the case of Neera Mathur v. L.I.C.[xix] the courts held that being asked about information regarding menstrual cycles or pregnancies on job applications in the public sector was violative of the right to personal liberty.

As for women prisoners, in Sheela Barse v. State of Maharashtra[xx], Sheela Barse – a journalist and activist for prisoners’ rights – wrote to the Supreme Court saying that of the 15 women prisoners interviewed by her in Bombay Central Jail, five admitted that they had been assaulted in police lock-up. Given the seriousness of the allegations, the Court admitted a writ petition on the basis of the letter and asked the College of Social Work, Bombay to visit the Central Jail to find out whether the allegations were true.

The College submitted a detailed report which, in addition to admitting that excesses against women were taking place, pointed out that arrangement for providing legal assistance to prisoners was inadequate. The court gave directions that ensured the safety of women prisoners. It was to be made sure that they were held in only women prisons, guarded by female constables and their interrogation should also be only in the presence of a female constable.

Another right added to the wide ambit of Article 21 was the right to education. Previously it was only a directive principle, but in Mohini Jain v. State of Karnataka[xxi] the court ruled that right to education emerged from the right to life and that the state was under an obligation to provide educational institutions at all levels for the benefit of the citizens. This resulted in the Right to Education Act of 2013 where 21A was added stating that:

“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

With modern amenities come with modern problems, and judicial activism was the only answer to the issue of environmental pollution in the absence of any legislations on it. Subhash Kumar v. State of Bihar[xxii] it was held that enjoyment of a pollution free environment was included in the right to life. Right to a clean environment has been read into the right to life; the courts have established two principles on the basis of which environmental jurisprudence has developed in India:

  1. Principle of sustainable development and
  2. the precautionary principle

One of the most notable instances of judicial activism with respect to environmental jurisprudence was M.C. Mehta v. Union of India[xxiii]. This was the case in response to the devastation after the leak of Oleum gas from Shriram Food and Fertilisers Ltd. complex at Delhi. The Supreme Court laid down the principle of “absolute liability” and “deep pockets” to ensure that any environmental damage due to industries could be prevented to the extent that companies would take care not to be callous as they would be faced with payment of huge monetary damages, this was essentially the polluter pays principle, now very famous in Tort Law.

In M.C. Mehta v. Kamal Nath[xxiv] it was held that any disturbance of the necessary elements of the environment like air, water, soil etc. which are essential to life would be hazardous to life and thus would come under the scanner of Article 21. The doctrine of public trust was relied on by the court and it was stated that natural resources were for the use and responsibility of society at large. Thus the State as a trustee of these gifts of nature is duty bound to protect them. Similarly in M.C Mehta v. Union of India(2003)[xxv], the Supreme Court laid down that heavy, medium and light-weight vehicle that were not compliant to Euro II norms of fuel that and did not have low sulphur, benzene fuels would not be permitted to ply on the roads of the National Capital.

In two more cases filed by M.C. Mehta, the Supreme Court a) made provisions for the effluents from tanneries not polluting water resources and b) made rules for vehicles and industries around the Taj Mahal to protect it from degradation and weathering that was a result of high levels of air pollution. Thus the Judiciary through its continuous activity has made attempts to protect the ecology of India and ensured that legislations are passed that aim to do the same.

No democracy or state is a perfect one, but these acts of the Judiciary attempt to bring India closer to the ideal imagined by the fathers of the nation. Judicial Activism not only lays down new principles and gives new meanings to the provisions of the constitution, but it also urges the legislature to be earnest to its duties and provide the nation with legislations that are the need of the hour. The Judiciary is, was and continues to be one of the most respected institutions of the nation and has proven that it takes its role on the running of the nation seriously.

Opponents of the practise of Judicial Activism say that they are acting in excess of their powers, that the judiciary is filled with the corrupt who derelict their duties, but it has been observed by the public that Superior Courts of the nation have the welfare of the country on their agenda. Increase in Public Interest Litigation has also helped the judiciary take up issues that plagues the Indian society, be it cases of human rights violations, corruption or environmental issues. The rigid rules of Locus standii have been diluted a little to make sure that those who cannot represent themselves can be represented by more aware members of society.

In fact, suo moto action of courts has helped indeed. For example in Ramlila Maidan Incident, In Re v. Home Ministry and Others[xxvi] the court decided upon question regarding the right to life and liberty, right to assemble etc. Justice B.S. Chauhan even added that the right to sleep was included in the right to life as sleep was necessary for a good life. Thus Judicial Activism has done nothing but good for the country and made sure that the constitution and rights of individuals are upheld.

Conclusion

In the words of Honourable Mr K.G. Balakrishnan, Chief Justice of India,

“The dilution of the rules of standing among other features has allowed the Courts to recognize and enforce rights for the most disadvantaged sections in society through an expanded notion of ‘judicial review’. Even though the framers of our Constitution may not have thought of these innovations on the floor of the constituent assembly, most of them would have certainly agreed with the spirit of these judicial interventions. With these words, I would like to thank all of you for being patient listeners.”

-Edited by Naman Jain

Formatted on 26th February 2019

Footnotes

[i] P.N. Bhagwati C.J., Judicial Activism in India

[ii] A.K. Gopalan v. Union of India A.I.R. 1950 S.C. 27

[iii] Maneka Gandhi v. Union of India AIR 1978 SC 597

[iv] Francis Coralie Mullin v. Administrator, Union Territory of Delhi A.I.R. 1981 S.C. 746

[v] AIR 1978 SC 1675

[vi] S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001),

[vii] Charles Sobhraj v. Supdt., Jail, Tihar AIR 1978 SC 1514

[viii] Prem Shankar Shukla v. Delhi Administration 1980 SCC 526

[ix] Citizens for Democracy v. State OF Assam 1995 SCC 743

[x] Mandeep Tiwana Edited by Maja Daruwala, Human Rights And Policing: Landmark Supreme Court Directives & National Human Rights Commission Guidelines, Available at: http://www.humanrightsinitiative.org/publications/hrc/humanrights_policing.pdf Last seen at 20/9/2013

[xi] Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1977 SC 1277

[xii] Sher Singh v. State of Punjab AIR 1983 SC 465

[xiii] Nilabati Behra v. State of Orissa, AIR 1993 SC 1960

[xiv] Khatri v. State of Bihar, AIR 1981 SC 928

[xv] D.K. Basu v. State of West Bengal AIR 1997 SC 610

[xvi] State of Punjab v. Ramdev Singh AIR 2004 SC 1290

[xvii] Vishakha v. State of Rajasthan AIR 1997 SC 3011

[xviii] Apparel Export Promotion Council v. A.K. Chopra AIR 1999 SC 625

[xix] Neera Mathur v. L.I.C AIR 1992 SC 392

[xx] Sheela Barse v. State of Maharashtra AIR 1983 SC 378

[xxi] Mohini Jain v. State of Karnataka AIR 1992 SC 1858

[xxii] Subhash Kumar v. State of Bihar AIR 1991 SC 420

[xxiii] M.C. Mehta v. Union of India 1987 SCR (1) 819

[xxiv] M.C. Mehta v. Kamal Nath (1997) 1 SCC 388

[xxv] M.C. Mehta v. Union of India (2003) 10 SCC 561

[xxvi] Ramlila Maidan Incident, In Re v. Home Ministry and Others (2012) 5 SCC 1

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