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SC questions ‘judicial legislation, activism’

Posted in ACCESS TO JUSTICE, CONSTITUTION, COURTS, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 9, 2009

Recently the two-member bench of Justices Markandey Katju and Asok Kumar Ganguly raised a basic Constitutional issue of the judiciary’s competence to make executive orders or frame laws while hearing a petition of some Jawaharlal Nehru University students. The petitioners questioned a September 2006 apex court order for implementation of the  J M Lyngdoh Committee recommendations on reforming students’ union polls in colleges and universities. But the bench’s reference to the Constitution bench has the potential to go far beyond the issue in question, as in the last few years the apex court had delivered several popular judgments that were executive and legislative in nature, be it the enforcement of CNG autos, taxis and buses in the national capital, moving out industrial units from residential areas of the national capital or ordering the demolition of illegal commercial buildings across the city. The bench said the Constitution bench should consider whether the judiciary can frame and implement laws which were under the exclusive domain of the legislature and the executive. It noted that the courts lacked the expertise to pass orders of executive and legislative nature.

“Today there are high prices and large-scale unemployment. These are pressing social needs. But can we pass orders on these to the government because we do not have the expertise though we are also affected by the price rise,” the bench observed. “Tomorrow, we can’t abolish Parliament and say we are Parliament and start legislating,” the bench remarked. There cannot be “judicial legislation”, it further said, observing also that it was “improper” and “dangerous” for the judiciary to take over the functions of the legislature and the executive. All three organs of the government have their respective roles, therefore, “judges must exercise restraint. Otherwise, it is bound to create big reactions,” the bench cautioned.

In the case in question, the bench was recording its disagreement with the September 22, 2006, order of a two-member bench of Justices Arijit Pasayat and Lokeshwar Singh Panta which ordered the government to implement the Lyngdoh panel recommendation on reforming the students’ union elections in toto. The Lyngdoh panel itself was set up by the Human Resource Development Ministry under an earlier apex court order. The JNU students, in their petition, had questioned the Lyngdoh panel’s age restriction for students seeking to contest union elections. “We (courts) are taking over the functions of the legislature…yes, there are grey areas…we are of the view that this improper and dangerous for democracy,” the bench observed while referring the issue to the Constitution bench. The Constitution bench is required to consider if the September 22, 2006, order of the court was valid, whether that judgment amounted to judicial legislation, if judiciary can legislate and, if so, what is the permissible limit and whether judiciary can cite pressing social problems to pass such judicial directions.

In this context we attach a Article by Justice Markandey Katju , Judge Supreme Court of India

The Significance of Human Rights and Its Correlation with Judicial Functioning

This is excerpts of Speech Delivered by Justice Markandey Katju , Judge Supreme Court of India at a seminar held on 18-1-2003 on the above topic organized by Young Lawyers Association, Allahabad in which the Chief Guest was Hon’ble Mr Justice R.C. Lahoti, Judge, Supreme Court.

Hon’ble Mr Justice Lahoti, Hon’ble Mr Justice A.P. Misra, my Brother Judges, Mr Advocate-General, learned Members of the Bar, ladies and gentlemen.

To understand the true significance of the concept of human rights we must know its historical context. The concept of human rights is a modern concept. It arose in Europe in the 17th and 18th centuries during the struggle of the people against feudal despotism.

It was the English philosopher John Locke who first propounded the theory that there were certain “natural rights”; which the citizens could claim even against the King. These rights were first declared as legal rights by the French National Assembly in the “Declaration of the Rights of Man” in 1789 during the great French Revolution. Subsequently these rights were incorporated in the Bill of Rights in the US Constitution in 1791, and they have been included by many countries in their Constitutions. In the Indian Constitution they are contained in Part III which deals with the fundamental rights. These rights include the right of free speech and expression in Article 19(1)(a), the right to individual liberty in Article 21, the right to equality in Article 14, the right to religious freedom in Article 25 etc.

These rights were won by the people of Western Europe (particularly England and France) and America after tremendous, arduous struggles, turmoils and repression by the then feudal authorities. One may recall the English Civil Wars of 1642-60 and the Glorious Revolution of 1688 which established the principle of parliamentary supremacy in England, the struggles in France by Voltaire, Rousseau and other enlightened thinkers which led to the French Revolution of 1789 and the Declaration of the Rights of Man, the American Declaration of Independence of 1776 which proclaimed that all men are created equal, having the right to life, liberty, religious conscience etc. It was only after these historical and momentous struggles during which the entire society was thrown into turbulence and turmoil for long periods in these Western countries that the successful transition from feudalism to a modern industrial society could be accomplished.

In India, on the other hand, these rights were not a result of such prolonged social and political struggles and social churning as happened in the Western countries. These rights were imported from the West by our modern-minded Constitution-makers and then transplanted from the above on our backward, semi-feudal society. The result is that while these rights exist in the statute-book, many of them are ignored in many parts of our country, and that is because there was no long-drawn social struggle and social churning in our country for obtaining these rights.

For instance, the right of individual liberty contained in Article 21 would include the right to marry a person of one’s choice. But in many parts of our country this right does not exist. For instance, there were reports in the media of “honour killings” in Meerut and Muzaffarnagar of young men and women of different castes who were killed by their relatives or caste members because they wished to get married. In Justice Lahoti’s State, Madhya Pradesh we heard of several Bhil girls who were auctioned by their community members because they married young men of different castes against the wishes of their community or family members.

I may take another example. In D.K. Basu case1 it was proclaimed by the Supreme Court that custodial violence and third-degree methods by policemen are absolutely illegal and impermissible, being violative of Article 21 of the Constitution. Despite this clear directive everyone knows what really happens to detenus in the police stations of our country, and fake “encounters” are common.

I may also mention about sexual discrimination, and the need to struggle for women’s emancipation if we wish to make India a modern, industrial State. No doubt, Article 15(1) of the Constitution prohibits the State from discriminating against women, but it does not prohibit the society from doing so, and in fact such discrimination is widespread, beginning from the very birth of a child. I was told by Dr Baweja, former Medical Superintendent of Kamla Nehru Hospital, Allahabad that whenever a male child is born in the hospital the relatives distribute sweets, their faces are full of joy, but if a girl is born, they become dejected and crestfallen, as if a great tragedy has occurred. After the birth also the discrimination against the daughter vis-…-vis the son continues. More money is spent on the education etc. of the boy than on the girl, there are various restrictions placed on the girl which are not placed on the boy. A girl is taught by her parents that after her marriage she must put up with whatever treatment she gets—whether it is insults or beating—by her husband and his relatives. In recent years crimes against women have shot up, our courts are flooded with cases relating to dowry deaths, rapes, wife-beating etc. and all this shows how backward our society still is.

Part III of our Constitution contains the fundamental rights, whereas Part IV, the directive principles of State policy, contain the socio-economic rights. These socio-economic rights were included in the Constitution by our founding fathers because they realized in their wisdom that without them the rights in Part III are meaningless. For instance, the right of freedom of speech and expression is meaningless to a man who is hungry. The right to travel freely throughout India is meaningless to a man who does not have the money to travel from Allahabad to Lucknow. The right to trade or business is meaningless to a man who does not have capital.

Poverty is destructive of all rights, and the level of poverty in our country is appalling. The official figures show half the people living below the poverty line, and the unofficial figures would be much more. The media has shown how people in Rajasthan were eating rotis made of grass and how people in Madhya Pradesh and Andhra Pradesh died of hunger. In Orissa, people were eating mango kernels, and in Madras women were selling their kidneys to feed their families. Unemployment has reached an unprecedented level. For a single post of chaprasi there are over a thousand applicants, many of them holding MA or MSc degrees. Medical care has become a mirage for the poor people, medicines are prohibitively expensive, and the condition of government hospitals is too well known to be related.

There is a lot of talk of terrorism nowadays, there is even said to be a “war against terrorism”. But has anyone thought what makes a young man a terrorist or a criminal? It is unemployment. An unemployed man has only two choices—to starve, or to become a criminal or terrorist. Hence the root cause of crime and terrorism is unemployment, and therefore crime and terrorism can only be eradicated by creating a social order where everyone can get employment and a decent life.

In today’s India human rights and justice can have no other meaning than providing every man and woman in the society with food, water and other necessities, employment with a reasonable income, medical care for his/her family, good education to the children, opportunities for further development of the personality and skills, housing, recreation and rest, old age and sickness benefits etc. To my mind any other meaning given to the words “justice” or “human rights” is only empty talk and devoid of any real worth or content.

Before the Industrial Revolution in Europe and America, the society was mainly agrarian, and the method of production was so primitive that very little wealth could be created by it. Hence up to the feudal age only a handful of people e.g. kings, aristocrats and zamindars, could be rich, but the rest of the society (i.e. 98% of the people) had to be poor because very little wealth was generated by the feudal method of production. When the cake is too small, obviously very few people can share it.

This situation has totally changed after the Industrial Revolution in Europe and America in the 18th and 19th centuries. For the first time in world history now a situation has been created when no one need be poor, ignorant or unemployed. Modern scientific and technological methods of production are so powerful that they can generate enough wealth to satisfy the basic needs of all. The spread of education has made people all over the world aware of this new, unique historical situation, and hence people all over the world are no longer prepared to tolerate poverty, hunger, unemployment, oppression, exploitation or discrimination, and they are determined to have a life deserving to be called the life of a civilized human being, and are prepared to fight for this.

Hence the main goal of our nation must be to abolish poverty, unemployment, ignorance, disease etc. and to build India as a modern, powerful, industrial State. This is only possible by rapid industrialization, as industrialization alone can generate the wealth with which we can provide for the welfare of our people and ensure socio-economic rights to the people.

Underdeveloped countries like India are passing through a transitional age, between feudal, agricultural society and modern industrial society. This is a very painful and agonizing period. A study of the history of England of the 16th, 17th and 18th centuries, and of France of the 18th and 19th centuries, shows that the transitional period was full of turbulence, turmoil, revolutions and intellectual ferment. It was only after going through this fire that modern society emerged in Europe. India is presently going through this fire. The events in Gujarat, the barbaric “honour killings” in Western U.P. districts like Meerut and Muzaffarnagar of young men and women of different castes who were killed because they wished to get married, the burying alive of infants as a religious ritual, and the sale of their kidneys by women of Tamil Nadu (to feed their families) etc. show how poor, vulnerable, underprivileged and desperate our people still are, and the degree of abject poverty, casteism and communalism they continue to live under.

Our national aim must therefore be to get over this transitional period as quickly as possible, reducing the agony, which to some extent is inevitable in this period. Our aim must be to create India as a modern, powerful, industrial State, for only then will we be able to provide for the welfare of our people, and get respect in the world community.

The truth is that Indians, despite being an intelligent and industrious people, are not respected by developed nations, not because the colour of our skin is brown or black, but because our country is poor. Today the real world is cruel and harsh; it respects power, not weakness or poverty. When China and Japan were poor nations they were derisively called “yellow” races by the Western nations. Today nobody dares to call them that, as they are strong, industrial nations. Similarly, if we wish our country to get respect in the comity of nations we must make it highly industrialized and prosperous. For this purpose a powerful cultural struggle, that is, a struggle in the realm of ideas must be waged by our patriotic, modern-minded intelligentsia. This cultural struggle must be waged by combating feudal ideas e.g. casteism and communalism, and replacing them with rational, scientific ideas among the masses.

The Indian judiciary, too, must contribute to the progress of the nation and to our goal of creating India as a strong, modern, industrial State. The question therefore which arises is: what can it do in this connection?

The first duty and task of the Indian judiciary is to uphold the Indian Constitution in its true spirit and give teeth and content to its provisions. The Indian Constitution borrowed the parliamentary system of democracy and an independent judiciary from England, the federal structure and fundamental rights from the US Constitution, the directive principles from the Irish Constitution etc. Thus our Constitution is a modern Western-type democratic Constitution, but it was imported and transplanted on our backward, semi-feudal society from above and was not the product of our own indigenous social and political struggles. Consequently, our Constitution and our society do not correspond with each other, the former being modern while the latter being backward i.e. based on status and institutionalized feudal hierarchies of caste and gender. This is unlike in Western countries where both law and society have evolved in tandem.

The belief that merely importing and transplanting a modern Constitution from above will result in our society quickly becoming modern has proved to be mistaken. What has happened in Gujarat is a proof of this. People have killed each other in the name of religion in the year 2002 (as they did at the time of partition in 1947), although the Constitution has been in force since 1950. Similarly the “honour killing” of young couples of different castes by their kith and kin shows how casteist we still are.

At the same time, it cannot be said that the Indian Constitution is merely a paper document. By proclaiming modern ideals, the right to free speech, equality, secularism etc. the Constitution is pulling the society forward towards the goal of creating a modern society. No doubt it has not done so automatically merely by its promulgation, but it will reduce the pain, agony and duress which the Western societies had to go through during the period of their transition from feudalism to modernism. One may recall the thirty years’ war in Germany (between Catholics and Protestants) from 1618 to 1648 in which one-third of the entire German population (including women and children) was wiped out, or the massacre of the Protestants (called Huguenots) in France in 1572 or of the Catholics in Ireland.

Thus by setting up modern ideals in our Constitution, our founding fathers rendered a great service to the nation. The ideal of secularism incorporated in Article 25, for instance, will ensure that India will remain united. Our country has tremendous diversity, so many religions, castes, lingual and ethnic groups (unlike China, which though bigger in population and territory, has a broadly homogeneous population) and hence only secularism and equality for all can hold it together. These were the ideals which our great Emperors Ashok and Akbar taught us.

When India gained independence in 1947, the subcontinent was engulfed in religious madness and people massacred one another in the name of religion. It is to the credit of our leaders of that time that despite being under great pressure they resisted the temptation to declare India a Hindu State. This ideal of secularism i.e. equal respect for the beliefs of a multi-faith society is the best guarantee for the continuing unity of a country with extreme diversities.

I may also mention about caste since it is still an important feature in our society and caste atrocities are still common despite the provisions in the Constitution against them. It is said that caste originated from the Aryan invasion and conquest over the Dravidians. I need not go into this controversy, because subsequently caste developed into a feudal, occupational, division of labour in the society. Every vocation became a caste e.g. badhai (carpenter), lohar (smith), darzi (tailor), kumhar (potter), dhobi (washerman), chamar (cobbler, skinner) etc. Now at one time the caste system may have played a progressive role because it introduced a rudimentary kind of division of labour in the society, and as any student of economics knows, division of labour is necessary for human progress (see Adam Smith: The Wealth of Nations). In ancient and medieval times there were no engineering colleges or technical institutes, and hence the only way to learn a trade or craft was to sit with one’s father from childhood and imitate him in his work. Thus up to feudal times one had no choice in selecting his profession, he had to follow his father’s profession, and so the son of a badhai became a badhai, the son of a lohar became a lohar etc. The same thing happened in Europe too up to the feudal age. Even today many Englishmen have surnames like Taylor, Smith, Carpenter, Potter, Gardener, Barber etc. which indicates that their forefathers belonged to these professions. But in India the system of labour differentiation soon coalesced into a static and compulsory social compartmentalization from which there was in time, little escape. Badhai, lohar, dhobi, chamar etc. became rigid caste distinctions, which permeated and structured all social relationships.

In modern times, however, the situation is totally changed. Division of labour now cannot be on the basis of one’s birth but has to be on the basis of technical skills. A factory recognizes no caste or religion but only efficient production based on technology. Hence the caste system is totally outmoded today and has to be quickly destroyed if we wish to progress. In fact it has already been destroyed economically because the son of a badhai now does not become a badhai, he comes to the city and becomes an electrician or a motor mechanic, or having acquired education, he becomes a clerk, or a lawyer, engineer, doctor etc. Thus today people are no longer following their father’s profession, and this has largely destroyed the economic foundation of the caste system.

However, the caste system is being deliberately fostered and sustained socially by certain vested interests for vote-bank politics etc. The recent killings in Meerut of a Jat boy and a Harijan girl who wanted to marry each other is an example of how backward we still are socially. We have still a long way to go before the caste system is totally eradicated, but this is a goal towards which all modern-minded-and-patriotic people must strive, and the judiciary must help in this process.

I have dilated on all this in order to demonstrate that if our modern Constitution is forcefully upheld and implemented by our judiciary it will be of great help in transforming our society from a backward and semi-feudal society to a modern industrial one, and this will go a long way to ensure socio-economic and human rights to the Indian people. Of course it must be added that the judiciary has its limitations. The Judges cannot declare that everyone in India should be given employment. Even if they do so, such a direction cannot be implemented. Jobs are created on a large scale when the economy is rapidly expanding, and that is possible only when we have a political and social system committed to rapid industrialization. It is only large-scale industrialization which can generate the wealth required for creating a social order in which every citizen of the country gets employment and a decent life. However, although such a social order cannot be created by the judiciary—it is created by certain historical and political forces external to the judicial system—the judiciary can play a supportive and auxiliary role by setting up modern ideals, creating modern awareness and giving guidance to the people and the authorities in this connection.

Apart from that, the second duty of the Indian judiciary is to strike down backward, feudal laws, customs and practices as violative of Articles 14 and 21 of the Constitution. The scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court, which has interpreted the right of life in Article 21 to mean the right to a life of dignity i.e. a civilized life, and not merely an animal life. Thus the court has greatly expanded the scope of Article 21 of the Constitution, and there is considerable scope for further expansion of the content of Article 21 by the judiciary with the objective of taking India forward towards a modern industrial society. For example, soon after independence in 1947, Zamindari Abolition Acts were enacted in various States and these abolished the feudal land tenures, and these laws were upheld by the Supreme Court of India. This struck a powerful blow to feudalism.

Thirdly, by upholding the political right and civil liberties provided for in Part III of our Constitution (particularly Article 21) the judiciary is providing a framework for the socio-economic progress of the nation. Some people think there can be economic progress without democracy. This is a total misconception. Rapid economic development and democracy go together. Economic progress is impossible without democracy, because unless there is freedom to think, freedom to speak and freedom to dissent no new idea can be born, and without new ideas scientific and technological progress is impossible. Hence by upholding civil liberties the judiciary will be ensuring economic progress of the nation.

Fourthly, the judiciary must ensure that indigenous business and industry are encouraged and promoted because it is only by rapid industrialization that enough jobs will be created for everyone and wealth will be generated for the welfare of the people.

Finally, the judiciary must ensure that the State shall look after the welfare of the people, as is the mandate of the directive principles of State policy in our Constitution. Although India has been independent for more than 50 years, yet we have not even been able to provide food, water and employment to our people. What kind of independence is this? Starvation deaths have been reported in the press and TV amongst the farmers and weavers in Andhra Pradesh, Rajasthan, M.P. and Orissa. Many workers who were working in the textile industry in Kanpur and weavers in Andhra Pradesh have committed suicide because the industries have been closed down and the families of the workers are starving. In a large number of cities in India there is shortage of water and electricity in many localities, and this is so even in the capital of India, Delhi.

Today, the Indian judiciary is playing a role, which has no parallel in the history of the judiciaries of the world. It has been upholding the rights of citizens, both the formal political rights contained in Part III and also the socio-economic rights in Part IV of the Constitution. Many people regard the judiciary as the last hope of the nation, despite all its defects. The Indian judiciary must therefore prove itself worthy of the trust and confidence which the public reposes in it. The judiciary must therefore not limit its activity to the traditional role of deciding dispute between two parties, but must also contribute to the progress of the nation and creation of a social order where all citizens are provided with the basic economic necessities of a civilized life e.g. employment, housing, medical care, education etc. as this alone will win for it the respect of the people of the country.

http://www.ebc-india.com/practicallawyer/index.php?option=com_content&task=view&id=890&Itemid=54

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