Chapter 4 The Indian Constitution and Protection of Human Rights

Transcription

1 Chapter 4 The Indian Constitution and Protection of Human Rights No success or achievement in material terms is worthwhile unless it serves the need and interests of the country and its people and is achieved by fair and honest means. -J. R. D. Tata 131

2 Chapter 4 The Indian Constitution and Protection of Human Rights This Chapter is the important segment in this work on Human Rights. When we seek to protect the rights of individuals with help of statutory provisions, then the law of land has to play a vital role in restoring the rights of people. Indian constitution is the basic source of endowment of rights on its citizens. Therefore this chapter focuses on how the framers of Indian constitution have adopted the provisions of UDHR while designing the rights of people. It is widely understood that Indian constitution is a social document. Society is the collection of Individuals. Thus, all the provisions included in the chapter on Fundamental rights, aim at betterment of these people, the normal citizens of our land. As all the roads from inside any district lead to a highway or any express way, in the same manner, all the constitutional provisions ultimately aim at protection of rights of its citizens. Rights could be related to property, service matter, right to have healthy environment etc. A close examination of all these rights, reveal that ultimately these rights point towards protecting dignity of that individual. When we try to protect Dignity of an Individual, then it aims at the protection of the basic right of that individual. This chapter has the discussion of various cases, which have helped in restoring dignity of an individual and ultimately becoming landmark judgments, with respect to human rights. 132

3 While we discuss about administration of justice, then the role played by the judiciary has to be intently understood. Various pronouncements by honorable judges have resulted in protection of human rights on one hand and constitutional development on the other hand. Number of cases, depicting the activism of judiciary with respect to protection of Human rights, have been discussed at length. Constitution of any country is the supreme law of that country. In India our constitution which came into force on 26th January 1950, has by nature been very dynamic and has developed in consonance with the changing times and needs. The constitutional development results through a variety of processes: The constitutional amendment by the parliament. Role of judiciary in its interpretation. The judiciary immensely contributes to constitutional development while administering justice. Our constitution is also in tune with the United Nations in determining what human rights are and adopts the same holistic approach in determining the protection of human rights. The framers of our constitution had certain specific ideals which were enshrined in the wording of our constitution. Ultimately law of the land is always for its inhabitants, thus numerous judicial pronouncements have contributed to ultimately protect the Human Rights. It is the interpretation of the constitution which is actually a highly creative judicial function. Indian Democratic Society enjoys and lives the values like Individual Liberty, Human 133

4 Dignity, Rule of Law and Socio-Economic Justice. The judiciary is under an obligation to interpret the constitution in an apt manner to protect the rights of people. Since the commencement of constitution, the Supreme Court has rendered many decisions giving creative, purposeful, liberal and dynamic interpretation while expanding various provisions of the constitution The UDHR and UN Charter s relevance in Indian Constitution: As far as Human Rights are concerned, the provisions in the Indian Constitution related to fundamental rights and fundamental freedom, are actually an extension of the principals laid down in the UDHR of the UN. The framers of Indian Constitution were influenced by the concept of Human Rights. They developed on this concept substantially from the constitution of the USA. Certain provisions of our Constitution find a direct influence of the Universal Declaration of Human Rights. The protection of human rights is not limited to having very ideal and adaptable statutory provisions. Judicial activism is the dominating topic among the conscious citizens and law knowing people of India. It signifies the power of Judiciary to probe into the inner functioning of the Executive in matters of public interest. Growing frontiers of human rights in national and international spheres have also contributed to the scope and frequency of judicial activism. 134

5 Lord Coke of England in Bonham's case propounded the doctrine to adjudge void, an Act of Parliament when it is against a right and reason or repugnant or impossible to be performed. In America, there was a charge against Chief Justice John Marshal when he invalidated the legislation enacted by the American Congress in Marbuty v. Madison 1 The Indian Judiciary is not lagging behind of other judiciaries of the world. On the contrary the Indian Supreme Court is probably the only court in the history to have asserted the power of judicial review over amendments to the Constitution. Honorable Justice P.N. Bhagawati has rightly explained judicial activism as under: The Indian Judiciary has adopted an activist goal-oriented approach in the matter of interpretation of fundamental rights. The Judiciary has expanded the frontiers of fundamental rights and in process, rewritten some parts of the Constitution through a variety of techniques of judicial activism. The Supreme Court of India has undergone a radical change in the last few years and it is now increasingly being identified by the justices as well as people as the last resort for the purpose of the bewildered. The United Nations (UN) has therefore adopted a holistic approach in determining what human rights are, and the international community has repeatedly affirmed the interdependence of both sets 1 - Marbuty v. Madison b I Cranch 137 US

6 of rights. The International community also recognizes the concept of aiming at having desired change by protection of Human Rights Protection of Human Rights and the Directive Principles of State Policy The Universal Declaration of Human Rights and its Relevance in Indian Constitution helps one to understand the influence of the UDHR on framing of the Indian Constitution. They have been a guiding factor for the architects of our Constitution. The Article goes on to say that in the exercise of his or her rights and freedoms, Everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. While the Universal Declaration recognizes the inalienable rights and fundamental freedoms of the individual human being, it also recognizes that human beings live in community with one another, and that, this community is vital to the complete human person. All of these rights are necessary to the person who would realize his or her full potential as a human being. As such, they represent a universal standard that has meaning for all people. The Declaration is a sound and necessary instrument for preserving human rights in every nation on earth. Adherence to the principles of the UDHR has become a moral prerequisite for full participation in the community of nations. 136

7 The UDHR propounds the basic idea of identifying human dignity and providing for a legal framework for other nations to legislate on the basis of the underlying principles of UDHR. It is evident from the words and terms utilized in the preamble of the Declaration. It is as follows: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the Human family is the foundation of freedom, justice and peace in the world. Whereas disregard and contempt for Human Rights have resulted in barbarous acts which have outraged the conscience of mankind and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and what has been proclaimed as the highest aspiration of the common people. Whereas it is essential if man is not compelled to have recourse, as a last resort, to be a rebellion against tyranny and oppression that human rights should be protected by the rule of law. Whereas it is essential to promote the development of friendly relations between nations. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in the fundamental human rights, In the dignity and the worth of the human person and in the equal rights of man and woman and have determined to promote the social progress and better standards of life in larger freedom. Whereas member states have pledged themselves to achieve, in cooperation with the United Nations, the promotion of Universal respect and observance of human rights and fundamental freedoms. 137

8 Whereas a common understanding of these rights and freedom is of the greatest importance for the full realization of this pledge. The United Nations (UN) has therefore adopted a holistic approach in determining what human rights are, and the international community has repeatedly affirmed the interdependence of both sets of rights. One has to consider certain provisions in Universal Declaration of Human Rights in the first instance. Following mentioned are certain provisions in Universal Declaration of Human Rights which have relevance in articulation of statutory provisions: Article -1 of UDHR speaks that "all human beings are born free and equal in dignity and rights". They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article-3 provides that everyone has the right to life, liberty, security and peace. Whereas, Article-5 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article-6 provides that everyone has right to recognition everywhere as a person before the law. Article-9 further provides that no one shall be subjected to arbitrary arrest, detention or exile. The Article goes on to say that in the exercise of his or her rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of 138

9 meeting the just requirements of morality, public order and the general welfare in a democratic society. The principles laid down in the UDHR have influenced the makers of our constitution. It was proverbial saying that rights included in Part III in particular and those included in Pact iv of the Constitution are distinguishable. The former are justifiable while latter are not. That is why former are termed as fundamental rights, while the latter are termed as Directive Principles. It was said by several members in the Constituent Assembly that the directive principles are superfluous or mere guidelines or pious principles or instructions. They have no binding force on the State. In his speech Dr Ambedkar has said the following words, 2 The directive principles are like instruments of instructions which were issued to the Governor in General and Governors of colonies and to those of India by the British Government under the 1935 Act under the Draft Constitution. It is proposed to issue such instructions to the President and Governors. The text of this instrument of the instructions shall be found in Scheduled IV to the Constitution of India. What are called directive principles is that they are instructions to the Legislature and the Executive. Such a thing is, to be welcomed. Wherever there is grant of power in general terms for peace, order and good Government then it is necessary that it should be accompanied by the instructions regulating its exercise. 2 - Dr. Ambedkar in his speech on Nov

10 Dr. Ambedkar had also said in this respect that, What great value these Directive Principles possess will be realized well when the force of right contrives to capture power. Thus, it has no binding force, is no argument against their inclusion in the Constitution. There may be difference of opinion as to the exact place they should be given in the Constitution. It is an accepted fact that it is somewhat odd that the provisions which do not carry positive obligations should be placed in the midst of the provisions which do carry positive obligations. Their proper place is in Schedule IIIA and IV which contain the instruments of instructions to the President and the Governors. They are really instruments of instructions to the Executive and the Legislature as to how they should exercise their powers but that is only a matter of arrangement. Not only that but he also said that, "Having regard to the fact that there are various ways by which the Directive Principles may be brought about, we have deliberately introduced in the language that we have used in the Directive Principles something which is not fixed or rigid. We have left enough room for the people of different ways of thinking, with regard to the reaching to the ideal of economic democracy, to strive in their own way, to persuade the electorate that it is the best way of reaching the education, the fullest opportunity to act in the way in which they want to act. That is the reason why the language of the articles in Part IV is left in the manner in which the Draft Committee thought it fit to leave it. It is no use to give a fixed rigid form to something which is not rigid, which is fundamentally changing and must having regard to the circumstances as the times keep on changing. The Directive Principles have a great value as they lay down that our ideal is economic democracy because we did not merely adopted a parliamentary form of the Government to be 140

11 instituted through the various mechanisms provided in the Constitution without any directions as to what our economic ideal is, and what our social orders are to be, we deliberately included the Directive Principles in our Constitution. It was never intended by the makers of the constitution that the Directive Principles had no legal force but had moral effect while educating members of the Government and the Legislature, nor can it be said that the answer referred to necessarily imply that the directive principles had no legal force. If we have regard to the further speech of Dr Ambedkar while introducing the Draft Constitution, it would be clear what the makers had in their mind- the primacy of Directive Principles over the fundamental rights. The Directive Principles were enacted for the socially proved laws and implementing Directive Principles should prevail over the laws designed to protect the fundamental rights of the individuals. Till recently, there was different opinion as to whether Part III over- rides Part IV, or whether Part III has supremacy over Part IV, but that controversy has been minimized by the decisions of the Apex Court. The Directive Principles have now received increasingly greater importance since the Constitution was enacted. The Supreme Court in series of cases interpreted that Part III includes further fundamental rights on reading Part IV. That means the rights are not only the natural rights to be conferred by the Constitution. The public interest litigation is the outcome of this. The democratic ideal of justice rose on the foundation of equality, liberty and minimum control of the Government is thus a promise to promote the fraternity, assuring dignity to individual and unity to nation. What had been envisaged 50 years back has been realized by the Supreme Court 141

12 today. The fact of the close relationship of the Fundamental Rights and the Directive Principles is thus justified. Thanks to the higher Judiciary that it has demolished the wall between these two immediate neighbors and has built a bridge between them so that the concepts in the Preamble can now ply to and from without any conservative hindrance. In the above context of the nexus of Directive Principles and the Fundamental Rights Dr. Ambedkar s statement is remarkable. He said, In my judgment, it is very important. We have used it because our intention is that even when there are circumstances which prevent the Government or which stand in the Government giving effect to these Directive Principles, they shall always strive in fulfillment of these directives that is why we have used the word strive. Otherwise, it would be open for any Government to say that the circumstances are so bad, finances are so inadequate that we cannot even make effort in the direction in which the Constitution asks us to go." 3 This shows that the framers of Indian Constitution envisaged the need of these principles to guide administration of justice in a very just manner with a Human approach. Fundamental rights enumerated in Part III of the Constitution of India can be divided into two classes. (A) - Injunction restraining the state from denying certain fundamental rights like Articles 14 and 21. (B) - A positive conferment of such fundamental rights under Articles 19, 25 and 26. Part III confers fundamental rights in positive 3 - Stated by Dr Ambedkar, while explaining the word "strive" as used in the Directive Principles 142

13 as well as in negative language. Articles 15(1), 16(1), 19, 22(5), 25(1), 26, 29(1), 30 and 32 (1) can be described to be articles in positive language. Articles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are in negative language. "A fundamental right couched in negative language accentuates by reason of its importance of that right. The negative language is worked to emphasize the immunity from the state action as a fundamental right 4 ". Arts. 36 to 51 contain the Directive Principles. The founding fathers of our constitution realized that in a poor country like India, political democracy would be useless without economic democracy. Accordingly, they incorporated a few provisions in the constitution with a view to achieve amelioration of the socio economic condition for the masses. The Directive Principles are designed to usher in a social and economic democracy in the country. These principles obligate the state to take positive action in certain directions in order to promote the welfare of the people and achieve economic democracy. These principles give directions to the legislatures and executive in India with regards to the manner in which they should exercise theirpower. 5 The Preamble, the Fundamental Rights and Directive Principles form trinity of our Constitution State of Bihar v. Kameshwar Singh, 1952 SC VII CAD 476, cited from Prof. M.P. Jain, Indian constitutional Law 5th Edn Published by Wadhawa Company, Nagpur Dalmia Cement (Bharat) Ltd. vs. Union of India, (1996) 10 SCC

14 The Directive Principles seek to give certain directions to the legislatives and governments in India as to how, and in what manner and for what purpose; they are to exercise their power. But these principles are specifically made non enforceable by any court of law. Art. 37- The provision contained in this part shall not be enforceable by any court but the principles there in laid down arc nevertheless fundamental in governance of the country and it shall be the duty of the state to apply these principles. The reason behind the legal non-enforceability and nonjustifiability of these principles is that they impose positive obligation on the state while taking positive action. The Constitution makers, therefore taking a pragmatic view refrained from giving teeth to these principles. So, the state has to make laws and use its administrative machinery for the achievement of these Directive principles. The courts also however restrained itself from enforcing Directive Principles as such it does not create any justifiable right in favor of an individual. 7 The Supreme Court recently reiterated that, this Court has no power to give direction for the enforcement of directive principles of state policy by way of writ of mandamus. These fundamental rights conferred by Constitution have taken different forms. Some of these fundamental rights are said to have the texture of basic human rights. The Constitution guarantees to all its citizens the basic rights and ensures a truly egalitarian society where no class would be 7 -K. Rajendran vs. State of Tamil Nadu, AIR: 1982 SC 1107, sea also T.P. Kunhiraman vs. official Assignee Madras, AIR: 1983 Mad:

15 unprivileged, on ground of religion, race, cast, sex, descent, and place of birth or residence. Therefore laws and principles which are pronounced by the Supreme Court of India require mention on the importance of Article 21. This Article has enjoyed widest application and has been an aid in protecting Rights of people even by going beyond the actual words of the article. The Interpretation of this Article in various cases has resulted in identifying Human worth attached to this guarantee. It acts as a shield against deprivation of life or personal liberty. The individual shall have full protection in person. Political, social and economic changes entail the recognition of new right and the law in its eternal youth grows to meet the demand of society. The right to life and liberty is inherent in every man. There is no need to provide for the same in positive manner Article 21 of Indian Constitution: A Tool for Human Dignity. The part III of the Constitution is said to be the heart of the human rights. A close Look at article 21 of the Constitution alone makes it evident. It now becomes Cambodian of human rights. It deals with protection of life and personal liberty and states that no person shall be deprived of his life and personal liberty, except according to procedure established by law. This article acts as shield against the deprivation of life and personal liberty of the individual. 145

16 There are number of decisions of the Supreme Court of India to include within Article 21 itself all the varieties of rights which go to make a man's life, meaningful complete and worth living. For Example, the right to livelihood, right to shelter, right to information, right of enjoyment of pollution free air and water, right to health, right to live with human dignity, free from exploitation and right to be protected against unfair and oppressive police method in the interrogation of suspect, free from torture, starvation, etc. The Supreme Court also declared that speedy trail is a fundamental right. A free legal assistance at state cost is also fundamental right of a person accused of an offence, which may involve jeopardy to his life or personal liberty. That means every person is entitled to quality life consistent with human personality. This Article actually is an expressed provision in the constitution which aims at firstly Identifying and secondly in protection of human rights. In Maneka Gandhi v. Union of India, 8 ' The Court said - "It is obvious that Art. 21, though couched in negative language, confer the fundamental right to life and personal liberty.'' In Kharak Sing v. State U. P. the question as to proper scope and meaning of the expression 'personal liberty' came up for first time and majority of judges took the view that - Personal liberty as used in Art. 21 as a compendious term to include within itself all the varieties of rights, which go to make up the 'personal liberties' of man other than those, dealt with in the several clauses of Art. 19 (1). Art. 19 (1) deals with 8- Maneka Gandhi v. Union of India, (1978) 1 SCC

17 particular species of attributes of that freedom. 'Personal liberty' in Art. 21 takes in and comprise the residue. In Kharak Sing's case, word liberty was interpreted on lines of the meaning accorded to liberty in the 5 th and 14 th Amendments to the Constitution. Therefore, article 21 requires authority of law even for restriction on personal liberty, e.g. (i) interference with freedom of a person at home, e.g. by Dormitory visit by the Police at night; (ii) interference with right of a prisoner in jail to publish a book outside jail; any other restriction imposed while in jail, which is not authorized by law. Personal liberty in article 21 takes in all the rights of man Thus, personal liberty in Article 21 has widest amplitude.' Right to life, enshrined in Article 21 means something more than survival or animal existence. It would include the right to live with human dignity; a right to minimum subsistence allowance during suspension. It would include all those aspects of life which go to make a man's life meaningful, complete and worth living. That which alone can make it possible to live must be declared to be an integral component of the right to live. However, acquisition of land by State for public purpose does not violate Art. 21 but it includes the right to livelihood or right to shelter or dignity of person. Right to education - The citizens have a fundamental right to education. The said right flows from Art. 21. Every child and citizen of this country has right to free education until he completes the age of fourteen years. Thereafter his right to 147

18 education is subject to the limits of economic capacity and development of the State. The right to education is implicit in the right to life and personal liberty. The article only applies to the deprivation of life and personal liberty by the State. Article is not attracted in a case of trade or business either big or small. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy. Right to live includes the right of enjoyment of pollution free water and air. It is imperative that the family members of the arrestee or detainee should not be kept in darkness by withholding information about his arrest or detention or about the passing of order of detention or place of detention etc. The Concept of right to life and personal liberty thus include the right to live with dignity. This right also includes protection of health and strength of workers, men, and women and of children against abuse, opportunities, facilities, for children to develop in a healthy manner and in condition of freedom and dignity, education, and health facility, and maternity relief. Everyone in this country therefore, has a right to live with human dignity free from exploitation. This Article protects the right to livelihood as an integral facet 148

19 of right to life. Failure of the part of government hospital to provide timely medical treatment to a person in need of such treatment result is violation of his right to life. State cannot ignore this constitutional obligation on account of financial constraints. The environmental aspects concern Life and Human rights aspect concern 'Liberty in the matter of pollution; any disturbance of basic environmental elements namely air, water and soil which are necessary for life would be hazardous to life within meaning of Article 21. The life occurring in Article 21 does not include individual status in life. The fundamental right under the constitution of India are almost in consonance with rights contained in Universal Declaration Of Human Right as also the declaration at covenant of civil and political rights and the Covenants of economic and social and cultural rights to which India is a party having ratified them. The right to be protected against unfair or oppressive Police methods in the interrogation of suspects. Officers who are the custodians of law and order should have greatest respect for the personal liberty of citizen and should not flout the laws by stooping to bizarre act of lawlessness. It would be unreasonable to use hand curbs equaled or hoops unless state is liable to make out that no other practical way of 149

20 forbidding escape is available, prisoner being so dangerous and desperate and the circumstances so hostile to safe - keeping. Article 21 is applicable to all persons either citizen of India or foreigner. Right to shelter is a fundamental right which spring from the right to resident assured in article 19 (1) (e) as right to life. Speedy trial is the fundamental right. The free legal assistance at State cost is a fundamental right of a person accused of an offence, which may involve jeopardy to his life or personal liberty. Right to information. Right to development- it is duty of State to formulate its policy legislative and executive to protect the rights of people, in particular, the poor,the Dalit and Tribes as enjoyed in Article read with Articles 39, and also other related articles. Art. 39 (a) which directs the State to provide its policy security that the citizen men and women equally have right of an adequate means of livelihood. So, Art. 41 provide that the State within its limit of its economic capacity and development should make effective provision for securing the right to work in case of unemployment and of undeserved Wait. As observed by the Apex Court the Directive Principles of State Policy contained in part IV of constitution are the stairs to climb the high edifice of socialistic state and the fundamental rights are means 150

21 through which one can reach the top of edifice. The following words still add to the concept mentioned above: The rapid progress of scientific knowledge and thought; the deepest intellectual interest in the subject; the wide spread tenancies in all parts of world to reform or reconstruct the society has been influenced for the development of mankind. The Concept of human rights becomes a new gospel and has worked its way through the subsoil of human consciousness with speed and strength and has now become one of the great driving forces of our time. More and more people the world over realize, and realize more clearly, that there should be increased human rights inspections and publicizing of abuse Judicial Activism and Human Rights: The majority provisions of the Indian Constitution either directly aim at furthering the goals of social revolutions or attempt to foster this revolution by establishing necessary environment for its achievement. 10 The core of commitment to the social revolution lies in Part III and Part IV of our constitution together better known as conscience of our constitution,i.e. the Fundamental rights and Directive Principles of State Policy. So, it has its implication of having an independent judiciary which shall acts as the guardian of the Constitution. The powers which are vested in the judiciary by the Constitution are 9 - Lectures on human rights: by Dr. Vijay N. Ghormade. (2007) Hind Law House. 10 -Granville Austin, The Indian Constitution The Corner stone of a Nation (Oxford University Press) 1966, P

22 inherent. The judiciary is expected to perform its function under the Constitution in such a way that it enjoys credibility as a sentinel or savior of the rights of the people. But there are some who believe that the wide jurisdiction exercised by the courts in matters of public interest transgress the traditional doctrine of separation of powers. They held the view that the role of a judge is only to interpret and declare the law and not make it. The judges and the legal profession have been less than fully frank about the brilliant interaction which our system of law permits between the stable, undetected, continuant elements of government and the democratic creative but sometimes timorous and often unreliable elements of the temporary changing scene of political government (represented in parliament and in the ministry). Out of the interaction between three branches of Government one hopes that a harmony will merge, ordinarily it does. 11 It is a balancing act that all three instrumentalities of a state have to play in order to see that they do not 'unduly' transgress on each other s domain, because the Constitution of India provides for a system of check and balances, not strict separation of powers, so that each organ can to an extent enter the domain of the other. There is a requirement to discuss judicial activism with the role envisaged in the constitution for the judiciary. Concept of Judicial Activism The concept of judicial activism portrays the pro-active role played by the judiciary in ensuring that rights and liberties of the 11 - Justice A.M. Ahmadi, Dimension of Judicial Activism: Source from Supreme Court Cases Com. 152

23 citizens are protected. Through judicial activism, the court moves beyond its normal role of a mere adjudicator of disputes and becomes a player in the system of the country, laying down principles and guide lines that the executive must carry out. In performing its activist role the court is required to display fine balancing skills. While protecting the Fundamental Rights of the people, the judiciary must take care to ensure that its order are capable of execution, for no amount of judicial activism is useful if its orders are in capable of execution they then remain as Paper tigers only. But the vitality of law as a living being largely depends on the judges ability to pour life into the law when the occasions demands by making new paths in law. Common law could not have grown if judges had hesitated to enter the area of judicial activism. Whether judicial review of statute law have been possible if Chief Justice Marshall had in Marbury vs. Madison confined judiciary's role to faithfully interpreting the legislative enactment? Can the Articles 14 and 21 of our constitution have been what they are today if judges had not treated them expansible? No one can deny that with the changing social movement, the interpretation of constitutional and legislative provision must also change. The most important quality of law in a free society is its power to command respect, acceptance and support from the community. Therefore to ensure the continuance of this legitimacy the court should issue directions only after assessing the ground realities and analyzing the prospects of their being successfully implemented. One of the most important features of judicial activism especially when tackling problem that required a shakeup of the state and central 153

24 administrative machinery is the court s fearlessness when issuing commands to the Government. Meaning and Definition The definition of judicial activism is itself a matter of intense ongoing debate. According to Merriam Webster's Dictionary 12 judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed' constitutional or legislation intent. According to Black's Dictionary judicial activism is a philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decisions with the suggestion that adherent of this philosophy tend to find violations and are willing to ignoble precedents. Origin and Growth of Judicial Activism The judicial activism which is another name for innovative interpretation was not of the recent past; it was born in 1803 when Chief Justice Marshall the greatest judge decided Marbury vs. Madison 13 In this case the court held that a law repugnant to the constitution is void and that the courts as well as other departments are bound by that instrument. If there was conflict between a law made by the 12 - Cited from < kerbyj-indialt.htm, date of visit (B I Cranch 137 (US 1803) 154

25 congress and the provision in the constitution, it was the duty of the court to enforce the Constitution and ignore the law. Thus the twin concepts of judicial review and judicial activism were born. In the year 1893 when justice Mehmood of Allahabad High court delivered a dissenting judgment which sowed the seed of activism in India. 14 It was a case of an under-trial who could not afford to engage a lawyer. So, the question was whether the court decides his case merely looking at his paper. Mehmood held that the pre-condition of the case being heard would be fulfilled only when somebody speaks. Just look at how that man treated the law as living organism. That is the spirit in which judges engage in activism even today. In this ongoing complex of adjudicatory process, the role of the judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and reality. Therefore, the judge is required to take judicial notice of the social and economic ramification, consistent with the theory of law. Earlier, the judges of the Supreme Court did not take any steps to make their presence felt and began to actively pursue their functions assigned to them by the Constitution. This approach led to a series of decision scuttling reformative legislation on the ground that the law interfered with the Fundamental Right to hold property. The nation 14 - The Hon Justice Michael Kirby ACMG in Australia - India council Bar Association of India Lecture Source from: htto:// kerbyjindialt.htm.datc of visit:

26 was then witness to a series of events when a decision of Supreme Court was followed by yet another decision re affirming the earlier position. The struggle between the two wings continued and, in fact, it was during this time that Supreme Court, while interpreting Art: 368 of the constitution empowering parliament to amend the constitution made its land mark judgment in 15 holding that the basic structure of the constitution was not amendable, not even by the legislation of Parliament. During this period, the legislative sought to bring forth people oriented socialistic measures. Which, when in conflict with Fundamental Rights particularly the right to acquire, hold and dispose the property, were frustrated on the upholding of the challenges based on Fundamental Rights by the Supreme Court. The imposition of the Emergency in 1975 and the consequent suspension of Fundamental Rights had a profound effect on almost every aspect of Indian life. The Supreme Court too was affected and was at the receiving end of brick bats (Superseding of Judges) for having delivered judgments that were perceived by many as being violative of the basic human rights of Indian citizens. In the post emergency era the apex court, sensitized by the perpetration of large scale atrocities during the emergency, once again donned an activist mantle. In a series of decisions, starting with Menaka Gandhi vs. Union of India, the court widened the ambit of Constitutional provisions to enforce the human rights of citizen sought to bring the Indian law inconformity with the global trends in human rights jurisprudence. In 1979 by an amendment of the constitution the right to property was omitted and introduced in Art 300 A, thus cease to be 15 -Kesahavanda Bharati v. Union of India, (AIR 1973 SC 1461.) 156

27 a fundamental right and became constitutional right. During the 1980's and advent of 90's the court moved beyond being a mere legal institution; its decisions had tremendous social, economic and political reflections. Time and again it interpreted constitutional provisions and directed the executive to comply with the objective sought to be achieved by the constitution. Simultaneously, it introduced procedural innovations with a view to making itself more accessible to disadvantageous sections of society giving rise to the phenomenon of social action litigation or public interest litigation by waiving the rule of locus standi Judiciary and Directive Principles Fundamental Rights create negative obligations on the state i.e. the state is required to refrain from doing something and it is easier to enforce through a court a negative as compared to a positive obligation Accordingly Art. 13 declare that a law inconsistent with Fundamental Rights is void. But there was no such provision in the constitution as regards the Directive principles The Directive principles only guide the legislature but not exercising any such control over the same as observed by the Supreme Court in various cases. 16 The question of relationship between the Directive Principles and the Fundamental Rights has caused some difficulty and the judicial attitude has undergone transformation on this question over time. During the early stages, the courts adopted a strict and literal legal position in case of Directive principles of state policy. The Supreme 16 - Deep Chand Vs State of Uttar Pradesh, AIR 1959 SC

28 Court adopting the literal interpretative approach to Art. 37, held that a Directive Principle could not override a Fundamental Rights in case of conflict between the two. This was observed by the Supreme Court in following words. The Directive Principles which by Art. 37 are expressly made unenforceable by a court cannot override the provision found in Part III (Fundamental Rights) which notwithstanding other provisions, are expressly made enforceable by appropriate writs, orders or directions under Art: 32. The chapter on Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or executive act or order except to the extent provided in the appropriate Article in part III. The Directive principle has to conform to and run as subsidiary to the chapter on Fundamental Rights. 17 As days passed a vital change was observed in judicial attitude regarding the Constitutional position of Directive Principle. The Supreme Court started to give a good deal of value to the Directive Principles by harmonizing the two i.e. Fundamental Rights and Directive Principles. The Supreme Court started to adopt a new strategy while interpreting a statute can be understood from the following words. Where two judicial choices are available the construction in conformity with the social philosophy of the Directive principles has preference. The court therefore could interpret a statute so as to implement Directive Principles instead of confining them as more a theoretical 17 - State of Madras vs. Chempakam Dorairajan, AIR 1951 SC

29 idea. Further the Supreme Court went to an extent to adopt the principle of harmonious construction when there is conflict arose between Fundamental Rights and Directive Principles can be understood from the following words of Chief Justice Das in Kerala Education Bill In Chandra Bhavan Boarding and Lodging Bangalroe vs. State of Mysore. 18, the Supreme Court started to assert that there is no conflict on the whole between the Fundamental Rights and the Directive Principles. It was ruled in the lodging and Boarding case that they are complementary and supplementary to each other. Since then the judicial attitude has become positive and affirmative towards Directive principle and both Fundamental Rights and Directive principles have come to be regard as co-equal. In Golaknath vs. State of Punjab 19 the Supreme Court emphasized that the Fundamental Rights and Directive Principles formed an integrated scheme which was elastic enough to the changing needs of the society. In Keshavananda Bharati vs. State of Kerala 20 Court held through Hegde and Mukherji JJ.that, the Supreme The fundamental rights and Directive principles constitute the conscience of the constitution. There is no anti thesis between the Fundamental rights and Directive principles and one supplements the other Kerala Education Bill, Inrc, AIR 1976 SC Golaknath vs. State of Punjab 19 AIR 1967 SC In Keshavananda Bharati v. State of Kerala 20 AIR 1973 SC

30 The aim of the Constitution is to bring about synthesis between Fundamental Right and Directive Principles and to attain the goals of socio economic through non violent revolution. This can be understood from Pathumma vs. State Kerala 21. The Directive Principles and Fundamental Rights are interlinked to each other. In course of time, the judicial attitude was changed to the extent of integrating Fundamental Rights and Directive Principles. This can be understood from the observation done by the Supreme Court in rights to education case; The Directive Principles which have been declared to the fundamental in the governance of the country cannot be isolated from Fundamental rights. The Directive Policy should be read along with Fundamental Rights. 22 The equal status of Fundamental Right is given to Directive Principles by our Supreme Court in Olga Tellis case. 23 The importance of Directive Principles were explained by our Supreme Court can be understood from the words of Chief Justice Chandrachud. C.J. that the Fundamental rights are not an end in themselves but are means to an end. The end is specified in the Directive principles. The Fundamental Rights and Directive principles together constitute the core of commitment to social revolution and they together are the conscience of the constitution. The Indian constitution is found on the bed rock of the balance between the two. This harmony and balance between Fundamental 21 - Pathumma v. State Kerala AIR 1978 SC Unnikrishnan v. State of Andhrapradesh, AIR 1993 SC Olgatellis v. Bombay Municipal Corporation, AIR 1986 SC

31 Rights and Directive Principles is an essential feature of the basic structure of the construction. 24 The new strategy of reading Fundamental Rights along with Directive Principles with a view to define the Fundamental Rights paved a way to enlarge the scope of Directive Principles to an extent of creating more rights for the people over and above the expressly stated, Fundamental Rights. At the same time the values underlying the Directive Principle have also become enforceable by riding on the back of the Fundamental Rights. On the whole the judiciary has used Directive principles not to restrict but to expand, the ambit of Fundamental Rights. The much benefited area of this approach is by reading Art: 21 with Directive principles, by which the Supreme Court innovated many rights. The right to live with human dignity enshrined in Art 21 derives its life breath from the directive principles of state policy, 25 in the case of Bandhumuktimorcha vs. Union of India. Right to life includes the right to enjoy pollution free water. It was laid down in the case of 26 Subbash Kumar vs. State of Bihar. Right to health and social justice has been held to be a Fundamental right of workers. It is the duty on the part of the employee to protect the health of his workers. The court has derived this right by reading Article 21with Articles 39(a) 41, 43 and 48A Minerva mills v. Union of India, AIR 1980 SC Bandhumuktimorcha v. Union of India AIR 1984 SC Subbash Kumar vs. State of Bihar, AIR 1991 SC Consumer Education and Research Center vs. Union of India, AIR 1995 SC 922 see also LIC vs. CERE, AIR 1995 SC

32 in the case of Consumer Education and Research Center vs. Union of India. The Supreme Court s decision in the case of Chamelisingh is an exemplary decision. 28 It was with respect to Right to Shelter being identified as a Right related to human dignity. Right to education implicit in Art: 21 is to be spelled out in the light of the Directive principles contained in Arts: 41 and 45. Right to privacy 29 and the Doctrine of Public Trust have been introduced by the judicial decision in the enforcement of fundamental rights to give protection from arbitrariness and misuse of public authorities in exercise of public power. 30 Distribution of state license by ministers inconsistent with this principle has been held to the violative of Art. 14 of the Constitution and the minister responsible for the violation has been held personally liable for payment of compensation to be credited to the public exchequer. 31 Preservation of ecology and environment based on the Doctrine of sustainable development with the preservation of healthy environment has been recognized as a fact of right to life in the case of Buffalo Traders Welfare Association 32 The principle adopted is that ecology and environment are no objects of ownership but are natures gift intender to be preserved in trust for the future generation Chamelisingh vs. state of Uttarpradesh, AIR 1996 SC PUCL vs. Union of India, AIR 1997 SC M.C. Metha vs. Kamal Nath, (2000) 6 SCC Common Cause, Registered Society vs. Union of India and others, AIR 1996 SC 3538; (Petrol Pump case) 32 - Buffalo Traders Welfare Association vs. Maneka Gandhi, (1996) II SCC

33 In large number of cases covering different facts of ecology and environment, the court has intervened to arrest further degradation and pollution i.e. Air Pollution water pollution deforestation and degradation of biodiversity and being checked by cover is intervention. The ban on import of the hazardous wastes based on Basel convention is also under consideration of the court. The polluter pays principles and strict liability has been applied. Similarly ban on manufacture and sale of drugs which have proved to be injurious to human life and health has also been imposed Public Interest Litigation and Human Rights Protection In India the principle of judicial activism will not be completed unless public interest litigation is discussed. The judicial process of PIL has been very useful for protection of human rights of the people. The Judiciary was to be an arm of the Social Revolution upholding the equality that Indians had longed for. Judiciary plays a vital role in administration of Justice. The constitution is thus supreme and any action of any instrumentality of the state in conflict with it is null and void. Judiciary interprets the true spirit of the constitution. However, role of Judiciary and its constitution, maintenance and sustenance of rule of law has been significant and substantial so far. For variety of reasons, functions of Judiciary is widening and expanding. It is in this juncture the needs to reshape and reinforce our judicial system assume higher, wider and broader dimensions. The phenomenon, which is now called judicial activism, is, therefore, not one of recent origin. It originated with the Firm establishment of Courts as means of administration of Justice. Blacks Law Dictionary thus defines the term judicial activism as Judicial Philosophy which motivates Judges to depart from strict adherence to 163