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Judicial Activism: Meaning and implications
Black's Law Dictionary defines judicial activism as a "philosophy of judicial ...
Although judicial activism in the form of Public Interest Litigation (PIL)was pioneered by
Supreme Court Justices PN Bhagw...
To reduce the work load and multiplicity of appeals, Indian courts often require that the
applicant exhaust all other form...
Constitution that upheld the Court’s earlier stance. In the same case, the Court set aside the expert
opinion of the Telec...
on the company. Lastly, the larger and the greater the industry greater should be the compensation
payable; the Court rela...
Polluter pays:In Indian Council for Enviro-Legal Action v. India (1996) the Court reasoned that the failure
of statutory a...
the Court’s verdict there are no major changes either in the enforcement of neither the existing law nor
any modifications...
The failure of successive governments and other forms of redressing of public grievances have
legitimized the Court’s repe...
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Judicial activism of the Supreme Court of India

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Transcript of "Judicial activism of the Supreme Court of India"

  1. 1. Judicial Activism: Meaning and implications Black's Law Dictionary 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." Judicial activism is articulated and enforced byjudicial rulings suspected of being based on personal or political considerations rather than on existing law. Judicial activism implies going beyond the normal constraints applied to jurists and the Constitution, which gives jurists the right to strike down any legislation or rule against the precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily judicial activism unless it is active. Judicial activism is premised upon the fact that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is thus the polar opposite of judicial restraint. For Justice J.S Verma, judicial activism must necessarily mean “the active process of implementation of the rule of law, essential for the preservation of a functional democracy”. For Prof. UpendraBaxi, judicial activism is an inscriptive term that means different things to different people. While some may exalt the term by describing it as judicial creativity, dynamism of the judges, bringing a revolution in the field of human rights and social welfare through enforcement of public duties etc., others have criticized the term by describing it as judicial extremism, judicial terrorism, transgression into the domains of the other organs of the State negating the constitutional spirit etc. Recent times have seen judiciary play an intrusive role in areas constitutionally reserved for the other branches of governments. Failure on part of the legislative and executive wings of the Government to provide ‘good governance’ has provoked judicial activism. As Former Chief Justice of India A.M. Ahmadi said, “In recent years, as the incumbents of Parliament have become less representative of the will of the people, there has been a growing sense of public frustration with the democratic process. This is the reason why the (Supreme) Court had to expand its jurisdiction by, at times, issuing novel directions to the executive.” Indeed, Soli J Sorabjee said ''judicial activism has contributed to the protection of fundamental human rights. Unlike in the US, judicial review in India was provided for expressly in Article 13 of the Constitution. Article 13(1) states that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall to the extent of such inconsistency, be void. Article 31(2) prohibits the State from enacting any law that takes away the fundamental rights of citizens and renders void any law that is repugnant to this principle. In order to adjudicate whether a statute is inconsistent with a fundamental right, the Court has evolved formulae tailored to different sets of situations. Such institutionalization of judicial review at once laid the system open to interest groups and much larger democratization of the legal process and provided the courts the constitutional plank from where they could officially assume the referee’s chair. At the same time, the Constitution also specified the principle of separation of powers that has become the cause for tussle between the courts and the legislatures. The fundamental rights of Indian citizens are specified in Articles 12-35 of the Indian Constitution. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The initial construction of this provision was confined to procedural observance of violation that resulted in inconvenient Supreme Court decisions on the constitutionality of state action being overturned by amending the constitution until the basic structure of the Constitution was declared unalterable by the Court (GolakNath v. State of Punjab andKesavanandaBharati v. State of Kerala).
  2. 2. Although judicial activism in the form of Public Interest Litigation (PIL)was pioneered by Supreme Court Justices PN Bhagwati and VR Krishna Iyer in the mid-1970s, the Court asserted its power of judicial review in AK Gopalan v. State of Madras but set limits to the future exercise of such power. Unlike in the US, judicial review in India was provided for expressly in Article 13 of the Constitution. Article 13(1) states that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall to the extent of such inconsistency, be void. Article 31(2) prohibits the State from enacting any law that takes away the fundamental rights of citizens and renders void any law that is repugnant to this principle. In order to adjudicate whether a statute is inconsistent with a fundamental right, the Court has evolved formulae tailored to different sets of situations. The institutionalization of judicial review by PILs at once laid the system open to interest groups and much larger democratization of the legal process and provided the courts the constitutional plank from where they could officially assume the referee’s chair. At the same time, the Constitution also specified the principle of separation of powers that has become the cause for tussle between the courts and the legislatures. Subsequently, the Court set aside the election of a Prime Minister, challenged the Union Government’s authority to impose President’s Rule in a State and directed payment of maintenance to a Muslim divorced woman beyond the prescribed period under Shariat law. Articles 23 and 24 of the Constitution that had lain unused for over three decades since their promulgation were used by the Court in PUDR v. Union of India (AIR 1982 SC 1473) and BandhuaMuktiMorcha v. Union of India (AIR 1984 SC 802) to abolish forced labor since this violated the ban by these Articles on traffic in human beings (including forced labor). It was in 1978 that the Court breathed substantive life into Article 21 by subjecting state action interfering with life or liberty to a test of reasonableness; requiring not only that the procedures be authorized by law, but that they are "right, just and fair." (Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621, A.I.R. 1978 S.C. 597.) Even though this was a procedural case, yet the principle it enunciated would be followed by the SC in the years to come in most PILs. Such major transformation paved the way for a substantive reinterpretation of constitutional and legal guarantees and positive judicial intervention. Clearly, the Court cast itself in the robes of the ultimate arbiter of the country’s Constitution.The Court declared in one case that positive action is required "if the theory of equal protection of laws has to take its place in the struggle for equality. . . . The profound rhetoric of socialism must be translated into practice . . .” (Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545. A.I.R. 1986 S.C. 180.) Through an expansive reading of fundamental rights, supported by a commitment to the non-justiciable social welfare objectives of the Directive Principles of State Policy, the Court has read substance into otherwise formal guarantees on the basis of Art. 37 which states that the provisions contained in Part IV (Directive Principles) are not enforceable by any court, but the principles therein laid down are fundamental in the governance of the country. Such reliance on Directive Principles is particularly apparent in legal aid, prison and environmental litigation. The relevant Directive Principles are 39-A (state to provide free legal aid) and 48-A (environmental protection). In HussainaraKhatoon v. Bihar (AIR 1979 SC 1360), the Court therefore relied on Art. 39-A to support its finding that legal aid was a fundamental right under Art. 21 and suggested, even in the absence of legislation, that if legal aid was not provided by the state criminal trials might be void. In PUDR v. Ministry of Home Affairs (BandhuaMuktiMorcha,A.I.R. 1985 268) Article 21 was said to include the right to be free from exploitation and therefore, must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, etc.
  3. 3. To reduce the work load and multiplicity of appeals, Indian courts often require that the applicant exhaust all other forms of redress before seeking a judicial remedy in a higher court. However, in this area too, courts have flexed conventions. Article 31(2) of the Constitution empowers the Court to issue the usual remedies of habeas corpus, mandamus, prohibition, quo warranto and certiorari. In M.C. Mehta v. Union of India, (A.I.R. 1987 S.C. 1086) the Court ruled that cases of personal injuries and unlawful confinement should not limit the victim to the usual civil process alone. Therefore petitions are allowed directly to the Court under Article 31(1); damages may be awarded to compensate the victim and deter the wrongdoer. Deterrence strategies have witnessed the Court ordering, in BandhuaMuktiMorcha, local officials to identify oppressed workers, and to affect their release and physical economic and psychological rehabilitation. For this purpose the Court directed the authorities to accept the assistance of social action groups, to carry out surprise checks on local quarries, to set up labor camps to educate workers about their legal rights, and to ensure a pollution-free environment with adequate sanitary, medical and legal facilities. By emphasizing Articles 14, 19 and 21, the Court brought in many reforms in prison administration that preserved the fundamental rights of undertrials (Jain, 29). The variety of cases dealt with by the Court has also increased and now includes environmental hazards from breaking of ships (Research Foundation for Science, Technology and Natural Resource Policy v. Union Of India &Ors. (AIR 657 of 1995), confiscation of vehicle carrying forest products (State of West Bengal v. MahuaSarkar&Anr.AIR 991 of 2002) and regulation of sound levels of firecrackers and loudspeakers. The Court applied an increasingly widening interpretation of Article 21 of the Indian Constitution that protected the fundamental right to life and personal liberty of the people of India. It envisaged that no person shall be deprived of his life or personal liberty except to a procedure established by law. Lauding Justice (Retd.) V R Krishna Iyer for his judgments upholding rights of prisoners, MrSorabjee said torture was rampant in Indian prison cells. By giving judgments against solitary confinement and handcuffing of prisoners, Justice Krishna Iyer had upheld basic human dignity. Most strikingly, the Supreme Court recently issued a notice to the Union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian students in Australia, who have been facing racially motivated It was in this legal framework that the Court began its ‘greening’ of the law as if inviting other uninterested groups to join the arena. In Subhash Kumar v. State of Biharthe Court observed that Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life (1991). If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution.” Similarly, the right to equality in Article 14 has been used by PIL plaintiffs to get the Court to declare illegal government contracts for mining and other activities with high environmental impact. The Court cited intergenerational equity (preservation of the environment for future generations) as major ground against the government in State of Himachal Pradesh v. Ganesh Wood Products (AIR 1996 SC 149, 159, 163) and CRZ Notification Case (1996 (5) SCC, 281, 293). Latterly, under Chief Justice of India, Y.K. Sabharwal, the Court further expanded Article 21 in two ways. Firstly, any law that affected personal liberty should be reasonable, fair and just. Secondly, the Court recognized several unarticulated liberties that were implied by Article 21. By its broad interpretation of the second principle the Court interpreted the right to life and personal liberty to include the right to the environment.In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the
  4. 4. Constitution that upheld the Court’s earlier stance. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater tele-density in India. PILs have been initiated by individuals on behalf of other individuals and groups, by academics, journalists and by many social action organizations. The Indian judiciary has thus shown its willingness to alter the rules of the game where necessary. Legal actions may be commenced not only by way of formal petition, but also by way of letters addressed to the court or a judge who may choose to treat it as a petition. This was perhaps done by taking a cue from the US Supreme Court’s acceptance of a post card from a prisoner as a petition in Gideon v. Wainwright (372 US 335, 1963). Legal aid has been established as a fundamental right in criminal cases and in others the courts often waive fees, award costs and provide other forms of litigation assistance to public interest advocates. The Court also appoints commissions of enquiry or socio-legal committees to investigate and collect the necessary facts, thus relieving the petitioner of the financial burden of proof. These commissions not only investigate the facts, but may also be directed to recommend appropriate remedies. The Court often orders that they receive expenses and an honorarium from the defendant. In this manner the Court has socialized the legal process and involved people who were not even plaintiffs within the expanded locus standi definition of the Court. In 1975, the 42nd Amendment to the Constitution inserted two new Articles 48-A as a Directive Principle of State Policy and 51 (A) (g) as a fundamental duty of citizens. While Article 48-A stated that “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country", Article 51(A)(g) laid down protection of environment as one of the fundamental duties of every citizen (Krishnan, 2004). The 42nd Amendment also expanded the list of concurrent powers in the Constitution. Article 253 of the Constitution and Entry 13 of the Union List empowered Parliament to make laws discharging India’s international treaty obligations, were used to pass keynote legislation in pursuance of the UN Conference on the Environment (Stockholm, 1972). The passage of the Environment Protection Act by India’s Parliament in 1986 gave the first real teeth to enforcement of environmental legislation. Section 3(1) of this Act conferred very wide powers on the federal government ‘to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.’ This provision was to become the anchor for many of the Court’s rulings in the years to come. In tandem with basic principles drawn from the power of judicial review, the courts proceeded, posthaste, to establish a new PIL regime and re-establish the Doctrine of Public Trust that the Emergency (1975-77) had diminished. In addition to its pre-existing repertoire of principles, the SC has expounded four new principles in environmental law in India in the 1990s and beyond, as briefly discussed below. Doctrine of Public Trust:In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388) the Court held that the State, as a trustee of all natural resources, was under a legal duty to protect them, and that the resources were meant for public use and could not be transferred to private ownership. In the case of M.I. Builders Pvt. Ltd v. RadheyShyamSahu it was observed by the Court that public trust doctrine have developed from the Article 21 of Constitution and is very much a part of the Indian legal jurisprudence. Absolute Liability:In the case of M.C. Mehta v. Union of India (1987, 1 SCC 395) Chief Justice Bhagwati came up with the absolute liability principle. In this case the leak of oleum gas from the factory injured several Delhi citizens. Justice Bhagwati developed the concept of absolute liability, which replaced the strict liability ofRylands v. Fletcher (1868, LR 3 HL 330). As expounded by CJ Bhagwati, absolute liability applied to an enterprise that was engaged in inherently dangerous or hazardous activities. The duty of care of the enterprise was absolute and the exception to the strict liability developed in the Ryland v. Fletcher (1868, LR 3 HL 330) was therefore not applicable. The liability was on the enterprise rather than
  5. 5. on the company. Lastly, the larger and the greater the industry greater should be the compensation payable; the Court related the damage to the size of the factory and its potential to cause future harm, rather than the present damage caused by the factory. The transition from the strict liability to absolute liability was an example of whatSathe calls “constitutionalization of the tort law”. Thus in Consumer Education and Research Center v. Union of India (AIR 1995 SC 992) the Court ordered several asbestos mines and industries to pay compensation to any worker certified by the National Institute of Occupational Health to be suffering from asbestosis. Absolute liability thus raised the penalty for nonconformity manifold and acted as a powerful disincentive to polluters, irrespective of whether they were part of the judicial proceedings or were made party by the Court. Given the high costs of noncompliance, more hitherto prospective interest groups either filed PILs in similar cases or sought extension of existing Court orders to such cases. There was thus a socialization of the conflict – such socialization led to the democratization of the judicial process– and the Court became the most powerful arbiter and enforcer of public policy.JusticeHidaytuallah justified such activism thus “The first principle to observe is that the wisdom of the law must be accepted. A little incursion into law-making interstitially, as Holmes put it, may be permissible. For other cases the attention of Parliament and/or Government can be drawn to the flaw.” Sustainable Development:The SC has used the principle of intergenerational equity (future generations also to receive benefit) derived from the Rio Declaration whose main objective was to ensure that the present generation should not abuse the non-renewable resources so as to deprive the future generation of its benefit. This principle was used in the cases of and has also been recognized by the Court in the M.C. Mehta v. Union of India (AIR 1997 SC 734)). In State of Himachal Pradesh v. Ganesh Wood Products (AIR 1996 SC 149), the Court invalidated forest-based industry, recognizing the principle of inter-generational equity as being central to the conservation of forest resources and sustainable development. The Court has also given effect to the Precautionary Principle, again derived from the Rio Declaration. In the case of Vellore Citizen Welfare Forum vs. Union of India (AIR 1996 SC 2715) the Court through Justice Kuldip Singh opined “… we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country”. Similarly, in N.D Jayal v. Union of India ((2003) 6 SCC 572 at 586), the Court declared that ‘the adherence to sustainable development is a sine qua non for the maintenance of symbiotic balance between the right to development and development’. This concept is an integral part of life under Article 21.”The SC has also incorporated the ‘polluter pays’ principle of the Rio Declaration whose object was to make the polluter liable not only for the compensation to the victims but also for the cost of restoring of environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his act irrelevant of the fact that whether he is involved in the development process or not. Balancing of Interest: Unlike in cases of environmental pollution, the Court adopted a stance of “judicial restraint” when they decided on major infrastructural projects. In the Narmada BachaoAndolan v. Union of India (2000, 10 SCC 664) the Court opined that “….. we are not concerned with polluting industry...what is being constructed is a large dam. The dam is neither a nuclear establishment nor polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like SardarSarovar will result in ecological disaster. The experience does not show that construction of a dam ... leads to ecological or environmental degradation.” The Court thus limited its role to examining whether the government had taken into account all relevant aspects and had neither ignored or overlooked any material considerations nor was influenced by extraneous considerations in arriving at its final decision. The Court was therefore not apparently willing to interfere with a policy decision and create judge-made law.
  6. 6. Polluter pays:In Indian Council for Enviro-Legal Action v. India (1996) the Court reasoned that the failure of statutory agencies violated the rights of citizens to life and liberty guaranteed by Article 21 of the Constitution. In doing so, the Court has enunciated guiding principles such as ‘polluter pays for pollution’ (MC Mehta v. Union of India, 1987) and that the burden of proof would lie on the party that wanted to change the status quo (AP Pollution Control Board v. MV Nayudu, 1999). At the same time the Court has sought to balance development and environmental concerns and thereby limit its role to review of decision-making by governments only. The Court has intervened where relief and rehabilitation of people displaced by a project was not paid (Narmada BachaoAndolan v. India, 1998) and in cases where projects were approved by governments without considering environmental hazards (DLF Universal Ltd. V. Prof. ALakshmi Sagar, 1998). The Court also supported development in the Narmada BachaoAndolan v. Union of India (2000, 10 SCC 664). Yet judicial activism has not gone done well for various reasons. 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.” In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.On the other hand in its 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. Has the higher judiciary’s activism spurred positive action from the executive? Despite the initial pressure on State Pollution Control Boards (SCBs) in the Ganga case, continuing inadequate budget allocations and shortage of inspectors continue to plague the SCBs that raise serious doubts about maintaining the enforcement pressure created by the Court’s initial judgments. The Court’s activism has not been followed up by governments by updating legislation or closing loopholes in legislation. Thus while the SC coerced industries and state agencies into expending funds for preventing water pollution, the basic principle of polluter pays as a standing administrative arrangement has never been incorporated in the rules. Similarly, while the Ganga Action Plan stipulates advice from nongovernmental agencies and citizens it is silent on the means of giving effect to their advice. Nor are there any provisions in the rules as to whether private industry should have a say in the implementation of the project although they are the principal polluters. The ambiguous nature of government rules that are sought to be given statutory force by legislation such as the Water Act renders appeals under Article 32 ever more likely to higher courts while the fundamental issues remain unattended. A decade after
  7. 7. the Court’s verdict there are no major changes either in the enforcement of neither the existing law nor any modifications in the rules to make for greater monitoring and enforcement by state agencies.Kuik shows the state of Karnataka SPCB had a budget of Rs. 41.416 million in 1993 to pay for the monitoring of over 138,000 industrial units in the state. This amounts to about Rs. 300 per industrial unit, or a U.S. equivalent of about $6.139. As a result, the Karnataka SPCB was only able to monitor 8,966 of the state’s industrial units, a meager 6.5 percent. Furthermore, the Karnataka SPCB has lacked the resources to effectively prosecute and shut down offending industries. From the inception of the Water and Air Acts, in 1974 and 1981 respectively, until 1994, it had launched only eighty-seven prosecutions under the Water Act and thirty-seven prosecutions under the Air Act, resulting in the closing of only twenty-two industrial units. Secondly, the Court’s repeated incursions into the executive domain is manifested in polemical decisions seeking to relocate tanneries, allotment of land by states to relocated units, asking states to provide budgetary support to PCBs, etc. Nor were the Court’s solutions without questions. For instance, in MC Mehta v. Union of India (AIR 1996 SC 2231) the basis of determining adequacy of the compensation authorized to retrenched workers remained doubtful and inadequate. In the Tehri Dam Case (1992 Supp (1) SCR 44), the Court relied on the Ministry of Energy (that was interested in seeing the project through) for environment impact assessment (EIA) rather than the Ministry of Environment and Forests (that had the technical knowhow for this task and was not a beneficiary of the project). Third, the Court has been viewed as being insensitive to economic realities and exceeding the scope of the petition. Its decision to relocate 5,000 industries in the Taj Trapezium area based on a faulty data set of the National Environment Engineering Research Institute (NEERI) adversely affected the livelihood of over 50,000 people. Similarly, the decision of the Court (1999 (6) SCC 14) to bring forward the adoption of Euro automobile norms in the National Capital Territory of Delhi was not extended to any other city. Thus in Indian Council for Enviro-Legal Action v. Union of India (1996, 5 SCC 281) while ordering closure of industries, the Court did not hear many industries before passing the order. This departure by the SC from due process resulted in these industries approaching the Court with interlocutory appeals that consumed an inordinate amount of time, while leaving the parties aggrieved. Similarly, in the aftermath of the Bombay Hawkers’ Union verdict (AIR 1985 SC 1206) led to fresh litigation that not only dragged on for many years but also resulted in fresh encroachments by street vendors. The Court has also often bypassed enforcement processes enshrined in legislation. In the Dehradun Quarrying Case (AIR 1988 SC 2187, 2195), the Court and the federal government’s nominated expert was the same person, thus the report to both the court and government were identical and there was limited reference, if any, to alternative sources of information. Fourth, there appears to be some ambiguity about the Court’s application of Article 32 to private bodies as was done in the MC Mehta v. Union of India (Kanpur Tanneries) (AIR 1988 SC 1037). Equal ambiguity persists in the Court’s stand in taking remedial action in apprehension of probable harm being caused such as in the case of the Kanpur Tanneries. In MC Mehta v. Kamal Nath(1997 (1) SCC 388), the SC issued orders giving general directions that went beyond the scope of the petition. Fifth, the Court has suffered from lack of technical knowledge, inter alia, on environmental issues. The agencies that were appointed by the Court to assist it, like NEERI, have not always been reliable, nor was the Court able to resolve the complexitiesof such a large issue that had major political, economic and technological considerations. Sixth, the Court has also been seen as often wasting time in minor parts of their judgments. InSachidanandPandey vs. State of West Bengal (AIR 1987 SC 1109), the Court used a large amount of its time in pontificating on issues that had already been decided and agreed upon between the parties.
  8. 8. The failure of successive governments and other forms of redressing of public grievances have legitimized the Court’s repeated incursions into the executive domain, albeit mostly with doubtful efficacy of enforcement and piecemeal nature of decisions. India’s Supreme Court is evidently caught in a bind – on the one hand faced with public ire at growing government inaction, on the other having to reckon with the same inaction and yet trying to enforce the rule of law without radically upsetting the constitutional balance between the organs of state.As CJI A.S. Anand said, “…. the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both the legislature and the executive." Yet the danger of excessive and/or misplaced activism may be a major cause for loss of legitimacy of higher courts in the long run Anglo-Saxon separation of powers.

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