(i) SOCIAL JUSTICE ITS CONCEPT, SCOPE AND DIMENSIONS 

(ii) PUBLIC INTEREST LITIGATION 

(iii) JUDICIAL REVIEW 

(iv) JUDICIAL ACTIVISM 

 

(i) SOCIAL JUSTICE, ITS CONCEPT SCOPE AND DIMENSIONS: 

Before we delve upon the concept of social justice, it is necessary to differentiate it from the criminal type justice, where there are two parties  before a court; the accused and the prosecution. In social justice, courts are not usually involved and the subject matter is Society at large. It can create or promote positions or situations that favour some and deny to others. The concept of social justice was especially disseminated in 19th century as criticism against society for allowing or favouring economic differences in high propositions. Social justice, at that time meant to seek economic equality. However, with the passage of time, social justice has now taken on the idea of preventing or reducing wide spread wrongs, viz., social inequality, economic disparity, discrimination etc., affecting human dignity in different walks of life. 

Social justice is a concept of fair and just relations between the individual and society, as intended by the distribution of wealth, opportunities for personal activity, and social privileges. In the contemporary time global movements for social justice have focused breaking of barriers for social mobility, the creation of safety measures, life with dignity, grace and economic justice. United Nations calls social justice “an underlying principle for 2 peaceful and prosperous coexistence within and among nations.” It is also emphasized that “Social justice may be broadly understood as the fair and compassionate distribution of the fruits of economic growth”. 

It makes a firm commitment to the protection of human rights and civil  liberties. Major aims and objects are; reduction of discriminatory social practices, gender discrimination, removal of social and educational backwardness which retorts the process of social and economic development, human development and eradication of wide spread caste prejudices causing social instability, ruthlessness and insecurity. 

It aims at eradication of poverty and ensure that economic activities and institutions at all levels promote human development in an equitable and sustainable manner. Further, to ensure universal access to education, health care, economic opportunities and respect to all to live with dignity, without discrimination, to help facilitate natural and social environment supportive of human dignity, good health and spiritual well-being with special care to the rights of poor illiterate community of people and minorities. 

The Climate Justice and Environmental Justice movements also adhere to social justice principles, ideas, and practices in the areas of greenhouse gas emissions, climate-induced environmental displacement, and climate change mitigation and adaptation. Besides, environmental benefits and elimination of environmental pollution. 

Disabilities and problems of other groups like physically challenged, child labour, jail inmates, orphans, destitute, slum dwellers and tribals also form the agenda of social justice. The aforesaid challenges / problems in fact strike at the root of political unrest, social and ethnic conflicts and the growth of collective violence weakening moral values of sovereign socialist, secular and democratic fabric of our country. 

The PREAMBLE to the Constitution of our country solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic  and to ensure to all its citizens: 

JUSTICE, social, economic and political; 

LIBERTY of thought, expression, belief, faith and worship; 

EQUALITY of status and of opportunity; 

and to promote among them all 

FRATERNITY assuring the dignity of the individual and the unity and 

integrity of the Nation. 

The Preamble contains in a nutshell, its ideals and its aspirations. The Preamble is not a platitude but the mode of its realization is worked out in details in the Constitution. As observed by the Hon’ble Supreme Court in the case of 

A.K.Gopalan Vs. State of Madras, AIR 1950 SC 27, the Preamble is a declaration that makes out Constitution sublime and it is the guarantees mentioned in the Chapter as fundamental rights that make it one of the greatest charters of liberty and of which the people of this country may well be proud. The charter has not been forced out of unwilling hands of a sovereign like the “MAGNA CARTA” but it has been given to themselves by the people of the country through their ‘Constituent Assembly’. The Hon’ble Supreme Court in the case of Keshavananda Bharati Vs. State of Kerala, AIR 1973 SC 1461, it has been held that Preamble relates to basic structure or framework of the Constitution and in the later cases, Masilamani Vs. Idol of Swaminatha Swami, AIR 1996 SC 1697 & M.Nagaraj Vs. Union of India, AIR 2007 SC 71, it has been held that Preamble, Fundamental Rights and Directive Principles of State Policy are “trinity” intended to remove discrimination or disability on the grounds of social justice or gender. 

Hon’ble Shri Justice O. Chinnappa Reddy in the case of Atam Prakash v State of Haryana and Others, AIR 1986 SC 859 has observed as under: 

“The Preamble embodies and expresses the hopes and aspirations of the people. The Directive Principles set out proximate goals. When we go about the task of examining statutes against the  Constitution, it is through these glasses that we must look, ‘distant vision’ or ‘near vision’.

The Constitution being sui generis, where constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted maybe misplaced.” The Constitution envisages the establishment of a “Welfare State” at the Centre as well as the State level. In a Welfare State, the primary duty of the Government is to secure the welfare of the people. The object of the Directive Principles is to embody the concept of Welfare State. It is the duty of all the authorities of the State to ensure their activities are such so as to secure the high ideals set-forth in the Preamble and achieve the purpose as enshrined in Part IV of the Constitution which are general statements of social policy, principles of administrative policy, socioeconomic rights and a statement of the international policy of the country. 

It is well said that the Directive Principles prescribed goal to be attained and the Fundamental Rights laid down the means by which that goal was to be achieved. Fundamental Rights and Directive Principles constitute “Consciences of the Constitution” The Constitution aims at bringing about a synthesis between Fundamental Rights and Directive Principles of State Policy. They form the core of the Constitution. The Hon’ble Supreme Court in number of cases has laid considerable emphasis for effective implementation of various ‘Directive Principles of State Policy.’ Viz. People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473, Ashok Kumar Gupta v State of U.P., (1997) 5 SCCD 201, Ajaib Singh v Sirhind Cooperative Marketing-cum- Processing Service Society Ltd., (1999) 6 SCC 82 & Education & Research Centre vs Union Of India & Others, (1995) 3 SCC42 aiming at goals of social justice. Be it a matter to promote welfare of the people securing and protecting their fundamental rights to basic needs and amenities, right to life and live with dignity with better standards of life  without discrimination widening the expression “life” under Article 21 of the Constitution, education, rehabilitation, child victims of sexual abuse, immoral trafficking, determination, payment of fair compensation to the needy victims of accidents, enforcement of rights of industrial workers protecting them from exploitation keeping in mind the doctrine of social justice and many more areas etc., 

(ii) PUBLIC INTEREST LITIGATION: 

 

Object of PIL is to make justice available to downtrodden etc., having regard to concept of human right.- The Courts exercising their power of judicial review found to its dismay that poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women and children were handicapped by “ignorance, indigence and illiteracy”, and other down trodden have either no access to justice or had been denied justice. The Constitutional Courts coined and encouraged new dimensions of redressal mode through proceedings known as “Social Interest Litigation” or “Public Interest Litigation” with a view to render complete justice to such classes of persons. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other vulnerable areas of public life. Constitutional Courts have also intervened when there had been vacuum in legislation, vulnerability of the policy of the State, lack of probity in public life, callousness, inaction, abuse of power or illegal exercise of power by the executive. 

In fact Public interest litigation is a part of legal aid movement intended to secure justice to poor masses that constitute the low visibility area. It is perceived to be a strategic arm to fulfill our constitutional obligation to protect and advance causes of large masses of people belonging to the deprived and exploited class of have-nots who are unable to realize and enjoy the socio-economic rights guaranteed under the Constitution of India. 

Liberalization of the rule of ‘Locus Standi’ has in a significant way helped facilitate to achieve the aforesaid goals. The Hon’ble Supreme Court in the case of S.P.Gupta Vs. President of India, AIR 1982 SC 149 has held as under: “Whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding…..What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possible for the Court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting ‘sufficient interest’, It has necessarily to be left to the discretion of the Court.” 

Nevertheless under the garb of public interest litigation, there has been increasing trends of frivolous litigation with oblique motive to achieve collateral purpose, viz., to settle personal scores or embarrass either the political executive or executive in the public domain. Such recourses were checkmate under the powers of judicial review by Constitutional Courts. In the case of Shri Sachidanand Pandey and another Vs. The State of West Bengal and others, AIR 1987 SC 1109 the Hon’ble Supreme Court has observed that today public spirited litigants rush to Courts by way of filing cases in profusion under the attractive name of “Public Interest Litigation.” They must inspire confidence in Courts and among the public. They must be above suspicions. …. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. ……It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected. It is necessary to have some self-imposed restraint on public interest litigants. 

(iii) JUDICIAL REVIEW: 

 

In JUDICIAL REVIEW OF ADMINISTRATIVE ACTION learned author DE SMITH states: “A modern system of judicial review requires not only principles to set the boundaries of lawful official action, but also to secure their effective implementation by means of adequate procedures and remedies”. In the Sixth Edn. Of the book, the learned author says: “ Judicial review also goes some way to answering the age old question of “who guards the guards?” by ensuring that public authorities responsible for ensuring accountability of government do so within the boundaries of their own lawful powers. 

The power of judicial review of the Constitutional Courts are precious in nature and part of basic structure of our Constitution and, therefore, an integral part of our constitutional system; an important limb of the governance of the country, besides legislature and political executive (Government). Though there is no constitutional limitation prescribed in exercise of such powers by the Hon’ble Supreme Court under Article 32 of the Constitution of India and the High Courts under Article 226 of the  Constitution of India, nevertheless; the Courts have formulated self- imposed limitations in exercise of such powers as a measure of judicial discipline. 

In fact, the power of judicial review is sacrosanct and fundamental to protect democratic polity governed by the rule of law. Under Article 32 of the Constitution of India, a complaint against violation of fundamental rights can be filed before the Hon’ble Supreme Court seeking protection against such violation. Under Article 226 of the Constitution of India, the complaint against violation of fundamental rights and legal rights can be filed before the High Court. The Hon’ble Supreme Court in the case of Narmada Bachao Andolan V. Union of India, AIR 2000 SC 3751, held that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decisions. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and the peoples’ fundamental rights are not transgressed except to the extent permissible under the Constitution. The court cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the highest judiciary under the Constitution casts on it a great obligation to defend the values of the Constitution and the rights of the people. The courts must, therefore, act within their judicially permissible limitation to uphold the rule of law requiring the Government to act in a particular manner; the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above law. 

The scope of judicial review generally in three areas, namely; 

(a) Judicial review of legislative enactments and subordinate 

legislation; 

(b) Judicial review of administrative action; and 

(c) Judicial review of judicial orders. 

 

(a) Judicial review of legislative enactments and subordinate 

legislation: 

 

In India legislative powers of Parliament and State Legislatures are conferred and distributed by Article 246, Lists, I, II and III in the seventh schedule of the Constitution. Parliament has exclusive powers to make laws with respect to any of the matters in List I and State Legislatures have exclusive power to make laws with respect to matters in List II. Parliament and State Legislatures have both power to make laws with respect to matters in List III which is called the Concurrent List. Residuary power of legislation is vested in Parliament by virtue of Article 246(4) and entry 97 in List I. The power of State Legislatures to make laws is subject to the power of Parliament to make laws with respect to matters in List I and List III. Entries in the legislative lists are fields of legislation and receive widest construction unless; their import is cut down by competing entries and other parts of the Constitution. [Balaji Vs. Income Tax Officer, Special Investigation AIR 1962 SC 123 and Union of India Vs. H.S.Dhillon, AIR 1972 SC 1061]. Further, a matter mentioned in an entry is construed to cover all ancillary or subsidiary matters which can be reasonably be said to be comprehended in it (State of Madras Vs. Gannon Dunkerley, AIR 1958 SC 560). But, when wide construction of an entry leads to a conflict or overlapping with another entry in the same or different list, the rule of harmonious construction is applied so as to reconcile the conflict and to give effect to all of them [Cal. Gas (Prop.) Ltd., Vs. State of West Bengal, AIR 1962 SC 1044 & Waverly Jute Mills Vs. Raymon & Co. AIR 1963 SC 90]. 

PITH AND SUBSTANCE: 

Pith means:”true nature” or “essence” and substance means the essential features underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the nature of a statute. This doctrine is widely used when deciding whether a State is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this principle is that an Act or a provision created by  the State is valid if the true nature of the Act or the provision is about a subject that falls in the State list. 

This doctrine is applied to scrutinises the law to discover: 

(a) the main purpose of the law; 

(b) the legal effect of the law – the expected impacts 

that are happen if the statute works as planned; 

and 

(c) the practical effect of the law – the actual 

consequences of the statue. 

Therefore, the question whether the legislature has kept itself within the jurisdiction assigned to it or has encroached upon a forbidden field is determined by finding out the true nature and character or pith and substance of the legislation which may be different from its consequential effects. If the pith and substance of the legislation is covered by an entry within the permitted jurisdiction of the legislature any incidental encroachment in the rival field is to be disregarded [State of Bombay Vs. F.N.Balsara, AIR 1951 SC 318, Ishwari Khetan Sugar Mills (P) Ltd., Vs. State of Uttar Pradesh, AIR 1980 SC1955 & Siel Ltd., Vs. Union of India, AIR 1998 SC 3076]. 

Besides, if the legislative enactment is in-conflict with or in violation of fundamental rights in part III of the Constitution of India; the doctrine of ultra vires is attracted, The concept of ‘State’ under Article 12 of the Constitution for the purpose of enforcement of fundamental rights has been widened by successive judgments of the Hon’ble Supreme Court so as to include not only all public and quasi-public authorities but also, such bodies which are involved in the activities in the domain of public [Ajay Hasia Vs. Khalid Mujib Sehravardi and others, AIR 1981 SC 487 & A.L.Halra Vs. The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361]. 

Subordinate legislation/ delegated legislation: 

Subordinate legislation is a process by which the executive (Government) is given powers of primary legislation to make laws in order to implement and administer the requirements of that primary legislation. Such law is the law made by a person or body other than the legislature but with the legislature s authority. Article 13(3) of the Constitution includes ‟ within the definition of law various forms of subordinate legislation such as order, rule, regulation, notification etc., The need for subordinate legislation arises due to limited time available for legislation in Parliament due to overburdening, increasing complexity requiring knowledge and experience of experts, covering those situations which have not been anticipated by the Parliament and flexibility in meeting emergency situations. 

However, the concept of subordinate legislation faces criticisms on many grounds including undermining separation of power, legislation by unelected people, lack of publicity, etc. Therefore, delegated legislation is open to the scrutiny of Courts in judicial review and may be declared invalid, primarily on two grounds, firstly; violation of the Constitution of India and secondly; violation of enabling Act. The second ground not only includes the instances of violation of substantive provisions of the enabling Act but also, the instances of mandatory provisions prescribed under the Act for framing of delegated legislation. It may also be challenged on the ground that it is contrary to other statutory provisions or that it is not in conformity with the statute or so arbitrary that it cannot withstand the test of reasonableness under Article 14 of the Constitution of India [Indian Express News Paper Vs. Union of India and others (1985) 1 SCC 641 & State of M.P., Vs. Renusagar Power Co., and others, AIR 1988 SC 1737]. It may be noted that delegated legislation cannot be questioned for violating the principles of natural justice in its making except when the statute itself provides for that requirement (Laxmi Khandasari and others Vs. State of U.P., and others, 1981 SC 873). 

 

(b) Judicial review of administrative action: 

12 The Constitutional Courts may examine the legality, validity and propriety of administrative action on the grounds, mainly; 

(a)violation of fundamental rights under Part III of the Constitution of India; 

(b) want or excess of authority or jurisdiction. Quorum non judice; 

(c) violation of principles of natural justice 

(d)bias and mala fides; and 

(e) coularable exercise of power 

 

(c) Judicial Review of judicial orders: 

High Courts in exercise of power of judicial review under Article 227 of the Constitution of India; power of superintendence over all subordinate courts and tribunals throughout the territorial jurisdiction in which it exercises the jurisdiction, tests the sustainability of the judicial orders passed in law on the premise; 

(i) whether the impugned order is within the scope of jurisdiction conferred upon it; 

(ii) whether the jurisdiction so exercised is in conformity with the provision of the enactment and is not in conflict 

therewith; 

(iii) the order so passed does not suffer from vice of perversity, unreasonableness, bias or mala fide; contrary to judicial discipline. 

 

(iv) JUDICIAL ACTIVISM: 

THE CONCEPT OF JUDICIAL ACTIVISM FOUND ITS ROOTS IN THE ENGLISH CONCEPTS OF ‘EQUITY’ AND ‘NATURAL RIGHTS.’ 

It is indeed difficult to trace the origin of judicial activism in India. Indeed, judiciary has been recognised as an independent and separate organ of the Government under the Government of India Act, 1935 and  subsequently, under the Constitution of India. However, there are a few instances even prior to that period, where certain distinguished judges of High Courts established under the Indian High Courts Act, 1861 exhibited certain flashes of judicial activism. As far back as in the year 1893, Justice Mahmood of the Allahabad High Court delivered a dissenting judgment which sowed the seed for judicial activism in India. In that case which dealt with an under trial who could not afford to engage a lawyer, Justice Mahmood held that the pre-condition of the case being “heard” would be fulfilled only when somebody speaks. 

“Judicial Activism” and “judicial restraint” are the terms used to describe the assertiveness of judicial power. These expressions viz., ‘judicial activism’ and ‘judicial restraint’ are used from the angle of the personal or professional view of the “right role” of the Court. The courts may be condemned or commended for staying from or for conforming to that “right role” Judicial activism generally has two dimensions, viz., filling up vacuum created in the governance system causing disaster to the democratic set up of the country. The vacuum is created by the inactivity, incompetence, disregard of law, negligence, suppression, nepotism, favouritism, corruption, utter indiscipline and lack of character among the two organs of governance, i.e., the legislature and the executive. When such vacuums are formed, it is against the good being of the nation and it may cause serious set back to the democratic set up of the country. Hence, the judiciary is left with no other option but to expand its horizons and fill up the vacuums created by the executive and the political executive. 

Another dimension is Social Want emerged due to failure of the existing legislations to keep pace with the existing situations, challenges and problems of the country. When the existing legislations failed to provide any solution, it became incumbent upon the judiciary to take on itself the situations, challenges and problems and provide solutions. In the process, the judiciary within the framework of governance to achieve this end is to provide non-conventional interpretations to the existing legislations, as to apply them for greater good. To help facilitate filling of missing links in the legislation and execution thereof by the executive which play a pivotal role in bringing social transformation. In the Indian context, the framework of judicial activism is wider because of the unique position given to the judiciary especially the Hon’ble Supreme Court and the High Courts under the constitutional scheme. The Hon’ble Supreme Court and the High Courts’ as constitutional courts have greater responsibility to address on questions related to the society. The concept, limit and dimensions of judicial activism through judicial precedents can be well understood from some of the land mark judgments of the Hon’ble Supreme Court, In Keshvanand Bharti Vs. State of Kerala, AIR 1973 SC 1463 = (1973) 4 SCC 225 by a judgment of 7:6, the Hon’ble Supreme Court while upholding the validity of the Constitution (Twenty-fourth Amendment) Act, 1971 (with effect from 05-11-1971) by which Article 13(4) (Nothing in this article shall apply to any amendment of this Constitution made under Article 368) was inserted, as laid down by majority that the amending power of the parliament is not absolute and by recourse to Article 368, Parliament cannot destroy essential features of the Constitution forming the basic structure of the Constitution of India and struck down the corresponding amendment made in Article 31C of the Constitution to the effect (and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy) holding the same as unconstitutional on the ground that the same is beyond the competency of parliament to take away the power of judicial review to question whether a particular law which professed to give effect to directive principles of State policy was in reality a law having that object or whether it was only for the colourable purpose. In subsequent judgment the Hon’ble Supreme Court further widened the scope of judicial review as to whether a particular law purporting to implement any of the directive principles is valid if it finds that the nexus  between that law and the directive principles relied are illusory to cover or whether it has direct and reasonable nexus with the directive principles under Article 39b or 39c of the Constitution of India (State of Maharashtra & Anr vs Basantibai Mohanlal Khetan & Ors, AIR 1986 SC 1466). 

In the case of M/s. Prag Ice & Oil Mills and another Vs. Union of India, AIR 1978 SC1296 while addressing the challenge to ‘Price Control Order’ issued by the Ministry of Civil Supplies Government of India under section 3 of the Essential Commodities Act on the ground that it violates Article 14, 19(1)(f) and 19(1)(g) of the Constitution [by the Constitution fortieth Amendment Act) passed in the year 1976, the Essential Commodities Act was placed under Ninth Schedule to the Constitution as item No.126]. The aforesaid challenge was met by the Union of India mainly on the premise that since the Essential Commodities Act, by reason of its being placed in the Ninth Schedule is immune from attack on the ground that this provision violates the fundamental rights guaranteed in Pat III of the Constitution of India, the Price Control Order which is but, a creature under the Act specified in that schedule must enjoy the same immunity by virtue of Article 31B of the Constitution of India which contemplates that none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provision of Part III of the Constitution. Hon’ble Supreme Court has held that the “Orders” passed under section 3 of the Essential Commodities Act, in pursuance of any scheme or policy do not become parts of the Act for the purposes of Ninth Schedule of the Constitution. Therefore, there could be no independent and direct protection of the Schedule upon the “orders” passed under the Act, as such orders cannot be said to be Acts or Regulations or provisions passed under the Act. Consequently, the impugned Price Control Order was held to be not immune from power of judicial review and can be tested on the anvil of Article 14 and 19(1)(g) of  the Constitution of India under power of judicial review. 

In the case of Minerva Mills Ltd., Vs. Union of India AIR 1980 SC 1789 = (1980) 2 SCC 591, the question for consideration before the Hon’ble Supreme Court under Article 32 of the Constitution of India was as to whether sections 4 and 55 of the Constitution (Forty-second Amendment) Act, 1976 transgresses the limitation on the power of parliament to amend the Constitution. Section 4 amended Article 31C of the Constitution by substituting the words and figures “[all or any of the principles laid down in Part IV] replacing the words and figures “[the principles specified in clause (b) or clause (c) of article 39 (with effect from 03/01/1977)]” shall not be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by [article 14 or article 19, Forty fourth Amendment Act, 1978] of the Constitution of India. Vide section 55 of the Constitution (Forty-second Amendment) Act, 1976, inserted clauses (4) and (5) under Article 368 of the Constitution, quoted below: 

368. Power of Parliament to amend the Constitution and 

procedure therefor.- 

(1). … ,,,, … 

(2). … … … 

(3). … … … 

(4) No amendment of this Constitution (including the provisions 

of Part III) made or purporting to have been made under this 

article whether before or after the commencement of Section 55 

of the Constitution (Forty second Amendment) Act, 1976 shall be 

called in question in any court on any ground 

(5) For the removal of doubts, it is hereby declared that there 

shall be no limitation whatever on the constituent power of 

Parliament to amend by way of addition, variation or repeal the 

provisions of this Constitution under this article. 

 

Upon serious deliberations, it has been unanimously held that the amended clause (4) in Article 368 of the Constitution since takes away the power of judicial review of the amending power of the parliament without limitation to amend by way of expanding its amending power, it damages essential features and destroy the basic structure of the Constitution. Therefore, it is a clear case of transgressing the limitation on the amending power of parliament as held in Kesavananda Bharati’s case (supra). Hence, section 4 of the Constitution (Forty-second Amendment) was held to be beyond the amending power of the parliament. Consequently, struck down clause (4) of Article 368 of the Constitution of India. While addressing on the constitutional validity of clause (5) and amendment to Article 31C by the majority view, it has been held that the Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. Absolute primacy to one over the other shall disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution. Therefore, absolute immunity from judicial review of the enactments under Article 31C of the Constitution though violating Article 14 and Article 19 of the Constitution cannot withstand the judicial scrutiny and accordingly struck down. It is further held that the parliament can give effect to the directive principles of the State towards securing “all or any of the principles laid down in part IV” but without abrogation of the fundamental rights under Article 14 and Article 19 of the Constitution of India. 

The Hon’ble Supreme Court had also taken note of the judgment in the case of Smt. Indira Nehru Gandhi Vs. Raj Narain, AIR 1975 SC 2299 wherein Hon’ble H.R. Khanna J., (As His Lordship then was) struck down clause (4) of Article 329A of the Constitution which abolished the forum for adjudicating upon a dispute relating to the validity of an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which in turn, is a part of the basic structure of the constitution. 

The Hon’ble Supreme Court in the case of People’s Union For Civil Liberties Vs. Union of India reported in (2003) 4 SCC 399, it was strongly stated that merely because certain rights are implied as they have been read into article 21, would not make them any less fundamental and they also are equally enforceable as express fundamental rights. It was held that, there cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this court.” In Bandhu Mukti Morcha V. Union of India (1984) 3 SCC 161, the Hon’ble Supreme Court has held that it is the fundamental right of everyone in this country, to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its lift breath from the Directive Principles of State Policy.” 

In Supreme Court Advocates-on-Record Association Vs. Union of India AIR 1994 SC 268, explaining the basic concept of laws a dominant phenomenon and not a strict law, as it keeps pace with social need, the Hon’ble Supreme Court has held that the exploration of the new principles are essential in those areas not before explored; the need for which is more so in light of unresolved and unforeseen modern challenges or to have become inapplicable to the new situations or found to be unsound. The Hon’ble Supreme Court in the case of Narmada Bachao Andolan V. Union of India, (2000) 10 SCC 664 = AIR 2000 SC 3751 observed that it was laid down by the courts that the land which is to be allotted in the resettlement areas should be at least equal in quality if not better than the land from which they were displaced. It is also implicit in the said decision that any plan for rehabilitation of the displaced people would have to be one after detailed enquiry with due application of mind. To deal with the social evil of immoral trafficking and its adverse consequences, in Prajwala V. Union of India, (2005) 12 SCC 136 the Supreme Court issued directions concerning the rescue and rehabilitation of such workers and monitoring of the protective homes in which such rescued individuals would be housed. Through the judicial intervention, the Hon’ble Supreme Court addressed the important facet of ‘right to livelihood’. By extending the horizon of right to life has held that “right to live includes the livelihood and live with dignity in the case of Menaka Gandhi Vs. Union of India AIR 1978 SC 597 and observed as under:- “An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the Constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live.” 

Further, the cause of ‘pavement and slum dwellers’ against their order of eviction passed by the Bombay Municipal Corporation in the case of Olga Tellis Vs. Bombay Municipal Corporation and others, AIR 1986 SC 180 wherein the Court emphasized the wide meaning of the right to life and held that the right to work and livelihood constituted an integral part of the right of life, since without working one cannot expect to live….. It would be unrealistic on our part to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. Commonsense, which is a cluster of life’s experiences, is often more dependable than the rival facts presented by warring litigants. 

The Hon’ble Supreme Court has given expansive meanings to the words ‘life’, ‘personal liberty’, and ‘procedure established by law’ as contained in Article 21 of the Constitution of India By such expansive interpretation it recognized the rights of under trial prisoners, prison inmates, and children under Juvenile Justice Act. The Constitutional  Courts have laid down the great emphasis and recognized the right to privacy, the right to a speedy trial, the right to an independent judiciary, and the right to efficient and honest governance. Right to early childhood care and primary education of children though find place under Article 45 of the Constitution; Directive Principle of the State policy but, did not yield desired result in the form of formulation and implementation of schemes by States in right earnest and perspective in the past. However, the Hon’ble Supreme Court while taking serious note thereof has laid great emphasis on Article 45 of the Constitution infusing life thereto in the case of Unni Krishna, J.P., & others Vs. State of Andhra Pradesh AIR 1993 SC 2178. Later on, the parliament has passed 86th Constitutional amendment introducing a new Article 21A by suitable modification of Article 45 of the Constitution of India; Right to Education. The Hon’ble Supreme Court through the process of judicial activism has also ensured filling up the gap created by legislative enactments in public domain while exercising its power under Article 141 of the Constitution of India. Visakha Vs. State of Rajasthan, (1997) 6 SCC 241. 

Through the process of judicial review and final interpreter of the Constitution of India, the Hon’ble Supreme Court while interpreting Article 356 of the Constitution of India in the context of presidential power to dismiss the State governments has held that the power so vested is not unbridled and absolute instead, the same is subject to judicial review thereby has imposed restrictions on such power ensuring not to misuse the power under Article 356 of the Constitution of India in the matter of dismissing State governments. State of Rajasthan Vs. Union of India, AIR 1977 SC 1361 = (1977) 3 SCC 592 and the land mark judgment in the case of S.R.Bommai Vs. Union of India, AIR 1994 SC 1918 = (1994) 3 SCC 1.In the latest judgment by the Hon’ble Supreme Court, Shivraj Singh Chouhan Vs. Madhya Pradesh Legislative Assembly, 2020 SCC Online SC 363 while dealing with the nature and scope of constitutional duty of the Governor under Article 163 of the Constitution of India an exception to general  rule of aide and advice of Council of Ministers, it followed the judgment in the case of S.R.Bommai (supra) and held to ensure that the Council of Ministers commands the confidence of the House, Governor can order for floor test to be conducted for verification and Governor is not obliged to seek or/and act on aid and advice of Council of Ministers in that behalf. However, the aforesaid decision of the Governor is always subject to judicial scrutiny to record the satisfaction that the Governor has prima facie and genuine material to order for floor test. 

CONCLUSION 

The above discussion with considerable wide range of judicial precedents in the context of ‘social justice’ and ‘judicial activism’ touching various aspects of personal liberties and social securities of people at large do reflect that the Constitutional Courts of this country through activist and creative interpretation of the Constitution, have expanded contours of Fundamental Rights and Directive Principles of State Policy ensuring balanced synthesis of both (fundamental rights and directive principles of State Policy) which to a great extent has helped to achieve promises made in the Preamble and keep alive our Constitution as a living organic compound and substance of vibrant democracy in the country. No doubt, Constitutional Courts (in the realm of judicial interpretation and activism) have always adhered to self-imposed limitations with care and caution avoiding overstepping into the field of either of two limbs of the governance. 

Besides, to reach out the poor illiterate community of people and minorities ensuring access to education, health care, human development and respect to all to live with dignity, without discrimination in a natural and social environment, to a great extent, the Constitutional Courts have made landmark contribution through judicial activism filling vacuum due to failure of governance system and inapt existing legislations. Nevertheless, indiscriminate free flow of camouflaged public interest litigations in Courts definitely raise an alarm. Therefore, the need of the hour is to ensure sustenance of objectivity of judicial review and protect it from pollution of subjectivity to avoid vulnerability in public domain. Before parting with, I find it appropriate to appeal to my young friends that  advocacy is a noble profession. To be a successful lawyer, the first and foremost requirement is to be a good human being; ability to love and have compassion, be creative and not to be a robot or alien. A lawyer must have qualities of forgiveness and let go of anger, admit when you are wrong and apologize, accept responsibility, be a good listener, be polite, have respect for others (and yourself), set goals for yourself, live with integrity, recognize opportunities to grow and change, be part of a community and embrace the cause of public. In this profession, it is gain said that there is crowd at the bottom and vacuum at the top. To ensure professional excellence and an edge to stand out, the qualities like honesty, morality, industry, punctuality, patience, credibility / reputation are of immense importance in making and sustenance of a lawyer. The ethics is of the quality amongst others which advocate must inculcate in the professional growth and must be an ongoing process. 

I expect all of you to join the Bar. Be in the main stream of life 

associated with public causes and; be voice of justice for: 

(i) the poor who cannot afford legal services 

(ii) the victims 

(iii) the destitute 

(iv) humanity 

(v) preservation of environment for ecological balance 

(vi) against violence. 

(vii) the physically challenged people 

I am sure you can do this with qualities of self-respect, self-esteem and self-reliant; as leader of the society. 

It is gain said that leadership has little to do with dominance and a great deal to do with understanding the problems and motivations of other people. 

With best wishes 

 

(JUSTICE ROHIT ARYA) 

 

(The writer is Hon’ble Judge, Madhya Pradesh High Court. Excerpts are from a webinar hosted by VYAPTI Foundation in which Justice Arya was Keynote Speaker.)