PIL as an Instrument of Social Change, Conclusion and Activism or Over-Reach

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PIL as an Instrument of Social Change

PIL is working as an important instrument of social change. It is working for the welfare of every section of society. It’s the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It’s an institutional initiative towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public places. In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work.

Conclusion

  • It would be appropriate to conclude by quoting Cunningham, “Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order.”

  • PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing states, including India, was the development of under develop men.

  • The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role so as to enable the court to bring justice within the reach of the common man.

  • Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. We may end with the hope once expressed by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.

Activism or Over-Reach?

  • Justice is the bread of the nation- it is always hungry for it. And, it is well known that justice delayed is justice denied. The role of judicial activism in India has been to provide a safeguard to the common man and indigent against an insensitive system. This noble task, taken upon itself by the courts, has provided succour, relief and requisite legal remedies to the needy and deprived, over the past few years of judicial intervention and cementing.

  • However, recently in a surprising censure of itself in recent times, the Supreme Court, has observed that judicial activism has disturbed the delicate balance of powers enshrined in the Constitution. “Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State i.e. the legislature, the executive and the judiciary must have respect for the others and not encroach into each other’s domain,” observed a bench comprising Justices A K Mathur and Markandeya Katju. The Hon’ble Bench also observed that these were matters pertaining exclusively to the executive or legislative domain and if there was a law, judges could certainly enforce it, but judges could not create a law and seek to enforce it.

  • The court was unwilling to accept the “justification” given for judicial encroachment that the other two organs are not doing their jobs properly. It said that even assuming if this were so, the same allegation could be made against the judiciary too because there were cases pending in courts for half a century. Judicial activism is not an unguided missile and failure to bear this in mind would lead to chaos. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.

  • While observing that the courts have “apparently, if not clearly, strayed into the executive domain or in matters of policy”, it questioned several orders of the Delhi High Court on the legality of constructions in Delhi, identifying buildings to be demolished, age and other criterion for nursery admissions, unauthorised schools, criterion for free seats in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in a hospital, the air Delhiites breathe , begging in public , use of subways ,nature of buses we board ,size of speed breakers on Delhi roads , auto rickshaws overcharging and accidents and enhancing fines.

  • Due to the confusion following the carping comments of the Supreme Court on judicial activism, on the tendency of judiciary to encroach into the powers of the Legislature and the Executive, a two judge bench of the apex court declined further hearing of a matter relating to rehabilitation of victims of flesh trade and referred the 2004 PIL to a larger bench in view of the observations made by the bench comprising of Hon’ble Justices A K Mathur and Markandeya Katju. However, this temporary flux was resolved by a three-judge bench of the Supreme Court, headed by Chief Justice K G Balakrishnan, which took the sting out of the earlier apex court order decrying judicial activism. ‘We are not bound by the two-judge bench order,’ the three-judge bench headed by the chief justice said, while issuing notices to the central and UP governments in a suit relating to the plight widows in Vrindavan and Mathura.

  • The Supreme Court has now asked the High Courts to follow guidelines it had laid down 14 years ago to “ruthlessly” weed out motivated PILs by ‘imposters and busybodies’ and reject petitions attacking justifiable executive actions for oblique motives “under the guise of redressing a public grievance”. It is a great relief to the common man that the record has been set right by the bench headed by the Chief justice of India because the courts are the last ray of hope for the oppressed, “bewildered” and politically powerless. Every democracy has to have a watch dog to check and balance the untrammelled powers of the state in order to ensure that, in the garb of “public interest”, the discretionary powers are not exercised arbitrarily to rough ride the fundamental rights of the citizen.

  • While it is imperative to exercise justifiable restraint and caution to ensure that judicial activism does not become judicial adventurism or tyranny, this power should be exercised only in exceptional circumstances and that too, only in public interest. Truly, judicial activism “is the oxygen of the rule of law”. The constitutional revolution, which was the vision of the Founding Fathers, was entrusted to the judiciary, giving it powers to enforce, through “writ power”, the socio economic liberation implicit in the fundamental rights and other avant-garde provisions of the Indian Constitution- the oasis of our democracy. “It is the courts, which have stood the test of time and served the cause of social-economic justice only to preserve the fundamental rights and duties of the citizen. When the executive violates these rights, the court cannot abdicate its responsibility or jurisdiction, oath bound as it is, to uphold the Constitution.”

  • It is, therefore, fair and just that the Chief Justice of India has assured the country that the confusion likely to flow from the two judge bench ruling, will be set at rest by a larger bench laying down parameters governing PIL jurisdiction and judicial activism without trespassing into the realm of judicial overreach.