Constitutional Law Assignment.docx

CONSTITUTIONAL LAW ASSIGNMENT, FOL,JMI, 2018-19

CONSTITUTIONAL laW assignment TOPIC-

JUDICIAL ACTIVISM AND POLICY MAKING Submitted by RAGHIB NAUSHAD Roll No. 45 of BA LLB (Hons.), Sem., III (R)

Faculty of Law Jamia Millia Islamia. In November, 2018

Under the guidance of DR. MOHD. ASAD MALIK Associate Professor Official Address: Faculty of Law, JAMIA MILLIA ISLAMIA, NEW DELHI- 110025

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CONSTITUTIONAL LAW ASSIGNMENT, FOL,JMI, 2018-19

CERTIFICATE The project entitled “ ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ “ submitted to the Faculty of Law, Jamia Millia Islamia for Constitutional Law as part of Internal Assessment is based on my original work carried out under the guidance of---------- ----------------------from---------- ------to-------------- . The Research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the research paper has been duly acknowledged. I understand that I myself would be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate: Date:

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CONSTITUTIONAL LAW ASSIGNMENT, FOL,JMI, 2018-19

INDEX ACKNOWLEDGEMENT……………………………..…….4 INTRODUCTION…………………………………................5 JUDICIAL ACTIVISM AND POLICY MAKING…..6 to 11 CONCLUSION……………………………………..……….12 BIBLIOGRAPHY…………………………………..……….13

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ACKNOWLEDGEMENT I would like to express my special thanks of gratitude to Prof. Dr. Asad Malik sir as well as the dean of our faculty Prof. Nuzhat Parveen Khan who gave me the golden opportunity to do this wonderful project on the topic “JUDICIAL ACTIVISM AND POLICY MAKING”, which also helped me in doing a lot of Research and i came to know about so many new things I am really thankful to them. Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this project within the limited time frame.

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CONSTITUTIONAL LAW ASSIGNMENT, FOL,JMI, 2018-19

INTRODUCTION The term 'judicial activism' refers to the action of the courts beyond the power of judicial review. In short, judicial activism means the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration. Judicial activism has arisen mainly due to the failure of the executive and legislatures to act effectively and to deliver the goods in just manner. Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act. It has provided an opportunity to citizens, social groups, consumer rights activists etc., easier access to law and introduced a public interest perspective. Judicial activism has played a commendable role in protecting and expanding the scope of fundamental rights. Some of the rights recognized through judicial activism are as follows:          

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Right to live with Human Dignity Right to Livelihood Right to Shelter Right to Privacy Sexual harassment of working women: violative of Art 14 and 21. Right to Health & Medical Aid Right to live in a Pollution Free Environment Ban On Smoking In Public Places Compensation for Violation of Article 21 Right of Prisoners

CONSTITUTIONAL LAW ASSIGNMENT, FOL,JMI, 2018-19

JUDICIAL ACTIVISM AND POLICY MAKING Supreme Court has been given wide range of power for the protection of the constitutional rights of the citizen of India. It is necessary to adopt the activist approach and to issue the directions to the states which may involve taking of positive action with a view to secure enforcement of the fundamental right. It has been assigned this active role under the Indian Constitution. Judiciary has been given very important role for the interpretation of law. If something is going wrong in the society, the Indian Judiciary cannot sleep closing their eyes uncaring for the problems faced by the society. They have to exercise their judicial powers for protecting the fundamental rights and liberties of citizens of the country. If executive and legislature are not working properly and fail to discharge their constitutional remedies, it will affect the basic right of the common people. Then it is the duty of the judiciary to check the excesses and to direct the authorities to effectively implement the welfare legislation. In the Hussainara Khatoon v. State of Bihar1, SC quoted that “the poor in their contact with the legal system have always been on the wrong side of the law. They have always come across “law for the poor” rather than “law of the poor”. SC held that speedy trial is a essential and integral part of the fundamental right of life and liberty enshrined in A. 21. In Bihar a number of undertrial prisoners were kept in various jails for several years without trial. The Court ordered that all such prisioners whose names were submitted to the Court should be released forthwith. Since, speedy trial was held to be a fundamental right guaranteed by A. 21, the SC considered its constitutional duty to enforce this right of the accused persons. In Bandhua Mukti Morcha v. Union of India2, it was held that the provisions conferring on the SC the power to enforce fundamental rights in the widest possible terms show the anxiety of the Constitution- makers not to allow any procedural technicalities to stand in the enforcement of fundamental rights. It is not at all obligatory that an adversary procedure must be followed in proceedings under A.32 for the enforcement of fundamental rights.

1 2

AIR 1979 SC 1369. AIR 1984 SC 802

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Protection against inhuman treatment in jail:In Sunil Batra v. Delhi Administration3, The Supreme Court has given a new dimension to the writ of habeas corpus by its judgement in this case. Court said that writ of Habeas Corpus can be issued not only for releasing a person from illegal detention but also for protecting prisioners from inhuman and barbarous treatment. Also in the case Veena Sethi v. State of Bihar4, the Court was informed through a letter that some prisoners, who were insane at the time of trial but subsequently declared sane, were not released due to some reasons and had to remain in jails from 20 to 30 years. The Court came in action and took the soumoto cognizance and directed that they be released immediately. In the case D.S. Nakara v. Union of India5, the judgement was as under mentioned :(1.) With a slight variation to suit the context Wolsey's prayer : "had I served my God as reverently as I did my King, I would not have fallen on these days of penury"; is chanted by petitioners in this group of petitions in the Shellian tune: 'I fall on the thorns of life I bleed'. Old age, ebbing mental and physical prowess, atrophy of both muscle and brain powers permeating these petitions, the petitioners in the fall of life yearn for equality of treatment which is being meted out to those who are soon going to join and swell their own ranks. (2.) Do pensioners entitled to receive superannuation or retiring pension under Central Civil Services (Pension) Rules, 1972 ('1972 Rules' for short) form a class as a whole' Is the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attract Art.14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violation of Art. 14 These and the related questions debated in this group of petitions call for an answer in the backdrop of a welfare State and bearing in mind that pension is a socioeconomic justice measure providing relief when advancing age gradually but irrevocably impairs capacity to stand on one's own feet. (3.) Factual matrix has little relevance to the issues raised and canvassed at the hearing. Petitioners 1, and 2 are retired pensioners of the Central Government, the first being a civil servant and the second being a member of 3 4 5

AIR 1980 SCV 1759 AIR 1983 SC 339 (1983) 1 SCC 304

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the service personnel of the Armed Forces. The third petitioner is a society registered under the Societies Registration Act, 1860, formed to ventilate the legitimate public problems and consistent with its objective it is espousing the cause of the pensioners all over the country. Its locus standi is in question but that is a different matter. The first petitioner retired in 1972 and on computation, his pension worked out at Rs. 675/- p.m. and along with the dearness relief granted from time to time, at the relevant time he was in receipt of monthly pension of Rs. 935/-. The second petitioner retired at or about that time and at the relevant time was in receipt of a pension plus dearness relief of Rs. 981/- Union of India has been revising and liberalising the pension rules from time to time. Some landmark changes may be noticed6. SC said that any individual firm, NGO can file a writ petition under A. 32 for the espousing the cause for the large number of old prisoners who are unable to approach the court individually.

Ban on Smoking in public places:We can easily see the How Supreme Court make policies for the welfare of the society. SC directed all states to immediately issue order s banning smoke in public places, public transport, etc. SC also asked the Commissioners of different States to submit the report of action taken against cigarette manufacturers violating advertising code. It’s a kind of judicial activism which is constantly done by the Judiciary for the well-being of the society.

Child Welfare:In the case Lakshmi Kant Pandey v. Union of India7, given that the Court treated a letter as a petition, this case is an excellent example of how the procedural innovation of public interest litigation in India has eased rules of standing (which determine who can bring a case) towards making the court system more accessible to disadvantaged sections of society. It also stands as an example of the judicial activism of the Indian Supreme Court. Confronted with legal vacuum on an issue with huge social implications, the Court did not hesitate to issue elaborate guidelines to regulate adoptions and protect children from prostitution and slave labour. The Supreme Court in this public interest litigation considered the issue of alleged adoption agency malpractice and neglect when approving inter-country adoptions. The Court in its judgment set 6 7

http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=002891232000 (1984) 2 SCC 244

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forth safeguards such that adoptions by foreigners would be handled in a manner promoting children’s welfare and their right to family life. In the case M.C. Mehta v. State of Tamil Nadu8, it SC said that Under the national Constitution and international instruments, including the Convention on the Rights of the Child, the Indian government is required to ensure that children do not engage in hazardous work. Looking to the causes of child labour, poverty is the basic reason that compels parents to employ their children, and unless alternative income is assured to families, these children will continue to work. Because the fines imposed on employers would not be enough to prevent a poor parent from having to put their child to work, the government owes these parents a duty of assistance to help remove their children from hazardous employment.

Direction for protection of women from prostitution and rehabilitation of their children:In Gaurav Jain v. Union of India9, the Court rejected the demand for providing separate schools and hostels for the children of prostitutes as it was not in the interest of such children. The application under A. 32 was made through PIL by advocate Gaurav Jain was asking for direction to the government for making such provisions for children of prostitutes.

Ordinance Rule:In D.C. Wadhwa v. State of Bihar10, in this case Supreme Court of India stated that the power of ordinance is conferred to the President and Governor is to deal with an emergency situation. It is to deal with such situation in which taking immediate action by the legislature is not possible. It is to prevent the suffering of national interest because of legislature being helpless to deal with the problem. The Apex Court went further and said the re-promulgation of the same ordinance is not allowed. Court said that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under A. 32. Every citizen has right to insist that he should be governed by laws made in accordance with the Constitution and not the laws made by the executive in violation of the Constitutional limitations. Under A. 32, SC has power to award compensation by way of exemplary costs to the petitioner whose constitutional 8

AIR 1991 SC 417 AIR 1990 SC 292. 10 AIR 1987 SC 579 9

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right is violated by the illegal and mala fide action of the State. Hence, the State of Bihar was compelled to pay Rs. 10,000 to the petitioner whose research brought in light this repressive practice.

Industries dangerous to health and life:In M.C. Mehta v. Union of India11, there was leakage of oleum gas from one of its units which caused the death of an advocate and affected the health of several others. The incident took place on December 4, 1985. Just after one year from the Bhopal gas disaster a large number of persons – both amongst the workmen and public were affected. This incident also reminded of the Bhopal gas holocaust. M.C Mehta filed a PIL under Articles 21 and 32 of the Constitution and sought closure and relocation of the Shriram Caustic Chlorine and Sulphuric Acid Plant which was located in a thickly populated area of Delhi. The management was directed to deposit a sum of Rs.20 L by way of security for payment of compensation claims of the victims of the Oleum Gas leak with the Registrar of the Court. They also directed to deposit Rs.15 L which shall be encashed in case of leakage of chlorine gas within the period of 3 years from the date of the judgement.

POLLUTION OF TAJ MAHAL (Taj Trapezium case) In the case M.C. Mehta v. Union of India12 M.C. Mehta filed a PIL in the court drawing attention of the Court towards the degradation of the Taj Mahal due to the atmospheric pollution caused by the chemically hazardous industries functioning around the Taj Mahal. the Supreme Court espoused the cause of protection of national heritages such as the Taj Mahal from deterioration and damage due to atmospheric and environmental pollution. The Court based its judgement on the Precautionary Principle and Polluter Pays Principle, thereby, making them an integral part of the environmental jurisprudence of our country. The Supreme Court has assumed a proactive role and made liberal use of the public interest litigation in protecting fundamental environmental interests. The judicial activism exercised by the Supreme Court for protection of the environment in this case demonstrates the increasing significance of environmental litigation in India. 11 12

(1996) 4 SCC 750 AIR 1997 SC 735.

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Sexual Harassment at Work Place:Vishakha and ors. V. State of Rajasthan13 is a very famous SC case where Vishakaha and other women group filed PIL against State of Rajasthan and Union of India to enforce the fundamental rights of working women under Article 14,19,21 of the Constitution of India. A social worker Bhanwari Devi was brutally gang raped for stopping a child marriage. The court decided that the consideration of “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in A. 14,15,19(1)(g) and 21 of the Indian Constitutionand the safeguard against sexual harassment implicit therein.”. Vishakha Guidelines were also issued. SC gave the definition of sexual harassment at workplace.

Standard of Drugs:In Vincent Panikurlangara v. Union of India14, a PIL was filed by the petitioner, an advocate under A. 32 asking for directions for banning of injurious and harmful drugs. It was held that the writ was maintainable as the issue raised by the petitioner was of vital importance; the maintenance and improvement of public health. The Court directed the Central Govt. to compensate and reimburse him for his expenses in recognition of his service for being the matter before the Court.

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AIR 1997 SC 3011 (1987) 2 SCC 165

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CONCLUSION Judicial review is the doctrine where legislative and executive actions are subject to review by the judiciary. Judicial policymaking occurs through the interpretation of statutes and the application of statutes to specific cases, and judicial review of legislative and executive action by the Supreme Court (A. 32 of the Constitution) and the high courts (A. 226). It is a very special type of power which has been given to the Supreme Court by which they protects the constitutional rights of the citizen. Policy making is deciding what is to be done by choosing among possible actions, methods, or principles for determining and guiding present and future actions or decisions. Judiciary cannot sit in an ivory tower like an Olympian closing their eyes uncaring for the problems faced by the society. If some misconduct is happening in the society, it is the duty of the of the Judiciary to control it by discharging their constitutional obligation. The exercise of authority of the judiciary is not for vain glory, but it is in discharge of its constitutional obligation. The role of judges is not only to “apply the law”, but they can also make laws by doing judicial activism.

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BIBLIOGRAPHY

BOOKS 1. Dr. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA, 55th edn., 2018, (CENTRAL LAW AGENCY).

WEBSITES 1. www.indiankanoon.com 2. www.scconline.com 3. www.manupatra.com 4. http://www.academia.edu/14343318/judicial.activism

5. https://www.lawteacher.net/free-law-essays/roleofindianjudicary

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