Judicial Activism

Q. Write an essay on Judicial Activism [20 marks - 2022, 2019, 2017]

Meaning

The term Judicial Activism was coined by Arthur Schlesinger Jr. in his article "The Supreme Court: 1947". Its presence can be seen in India since the Emergency days. 

The judiciary, as the guardian of the Constitution, plays an important role in upholding and promoting the rights of citizens. The active role played by the judiciary  while guarding the rights of citizens and maintaining the constitutional and legal system of the country is known as judicial activism. The judicial activism, sometimes becomes judicial overreach because of encroaching upon the areas of the executives. 

Definitions

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

V.D. Kulshrestha opines that when the judiciary becomes a key player in the law making process, which may be termed as encroachment, is termed as Judicial Activism

The concept of Public Interest Litigation (PIL) is one of the many outcomes of the Judicial activism.

Types of Judicial Activism 

(i) Judicial review 

The judiciary has been empowered to interpret the constitution and to declare any such law or order of the legislature and executive void, if found in conflict with the Constitution.

(ii) Public Interest Litigations (PIL) 

Any public spirited person may file a petition in the interest of large public. There must not be any personal interest in the litigation.

(iii) Constitutional interpretation

The judiciary has power to interpret the constitution within a predefined framework.

Importance of Judicial Activism

It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.

Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution. 

There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.

According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.

Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973. 

Case references

(i) In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.

(ii) IC Golaknath case: Fundamental Rights are not amenable by the Parliament as stated in Article 13. To amend the Fundamental rights a new Constituent Assembly would be required. 

(iii) Kesavananda Bharati case: This is also known as the basic structrue doctrine case as basic structure of the Constitution was deined in this case. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

Merits of Judicial Activism India

(i) Judicial Activism establishes a system of balances and controls in the functioning of the government. 

(ii) It ensures and protects the public rights.

(iii) Misuse of power by the government machinery would be rampant without the Judicial Activism.

(iv) In the issues where the legislature cannot take a decision, Judicial Activism is the only solution.

Demerits of Judicial Activism 

(i) There is a possibility of limiting the functioning of the government. 

(ii) Separation of power is violated due to judicial overreach. 

(iii) If any judgement is with selfish motives, this may harm the public at large. 

Doctrine of Colorable Legislation

Q. Explain the doctrine of Colorable Legislation. [4 marks - 2022]

Q. Colorable Legislation [4 marks - 2021]

Doctrine of Colorable Legislation

The doctrine of colorable legislation puts restrictions on the legislature while framing laws so that the legislature cannot transgress the provisionso enshrined under the constitution of India.

In KC Gajapati vs State of Odisha, the SC explained the doctrine and held that:

 if the constitution of a State distributes the legislative spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. 

Doctrine of Pith and Substance

Q. Explain the doctrine of Pith and Substance. [4 marks - 2022]

Q. Explain the rule of 'Pith and substance'. [10 marks - 2019]

Q. Explain the doctrine of 'Pith and Substance'. [10 marks - 2017]

Doctrine of Pith and Substance

The doctrine states that the state and the union governments should enact laws within their specified areas as enshrined under seventh schedule and will not encroach upon the other's teritory. If however there is incidental encroachments, the courts will apply the doctrine of Pith and Substance

However, if one among the state and the Centre does encroach upon the sphere of the other, the courts will apply the Doctrine of Pith and Substance.If the true object of the legislation relates to a subject within the competence of the legislature that enacted it, it should be held to be intra vires although it may incidentally encroach on the matters not within the competence of the legislature.

The doctrine was applied for the first time by the Supreme Court in State of Bombay vs FN Balsara and upheld this. The State of Maharashtra restricted the sale and possession of liquor by the provisions of the Bombay Prohibition Act and the same was challenged with the rationale that it was an interference on the act of importing and exporting of the liquor through the borders. The apex court held that the impugned legislation was in pith and substance a State subject even though it incidentally encroached the subject enumerated in List I.

Strict Interpretation of Penal Statutes

Q. What do you understand by the strict construction of penal statutes? Explain with the help of decided cases. [20 marks - 2017]

Q. What are the Strict Construction and Penal Construction of a Statute? [4 marks - 2018]

Q. Explain and illustrate the rules which the courts apply in interpreting the penal statutes. [20 marks - 2020]

Q. "Penal statutes are to be interpreted strictly". Explain. [ 20 marks - 2021]

Q. What do you understand by strict construction of penal statutes? Explain with the help of leading cases. [20 marks - 2022]

Q. Is a penal statute capable of wide interpretation? If so in what circumstances? [20 marks - 2023]

Strict Interpretation

Strict Interpretation imposes restrictions on the court to apply the text of the stututes as it is written. If the language is unambiguous, a judge must apply the plain meaning of the language and cannot consider other evidence that would change the meaning.

Constructions may be applied only when there is absurdity/ambiguity in the test. A provision is said to be strictly interpreted when the language of the text is unambiguous and given in its exact and technical meaning no other equitable considerations or reasonable implications can be made.

Penal Statute

The statutes which impose penal liabilities on a convicted person is said to be a penal statute. Essential ingredient for penal statute is punishing certain acts or wrongs. These statutes defines a criminal offense and prescribes its corresponding penalty (fine, or imprisonment).

Strict Interpretation of Penal Statutes

As a general rule, strict construction must be applied to criminal statutes. This means that a criminal statute may not be enlarged by implication or intent beyond the fair meaning of the language used or the meaning that is reasonably justified by its terms. 

The strict construction of criminal statutes complements the rule of lenity, which holds that ambiguity in a criminal statute should be resolved in favor of the defendant.

According to Lord Esher, if two possible constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from the penalty rather than the one which imposes penalty. 

In the Commissioner of Customs (Import), Mumbai v. M/s Dilip Kumar and Company & Ors., 2018, the SC held that “The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocent might become victims of discretionary decision making.” 

In Motibai v/s R. Prasad (1970), it was stated that Court should not try to add new words on its own, while interpreting a Penal statute. Courts are required to do Grammatical Interpretation of Penal Statutes.

Rules of Interpretation of the Constitution of India

Q. What canons of interpretation Indian judiciary adopts while interpreting the Indian Constitution? Examine. [20 marks - 2023]

Q. What are the rules for interpretation of Indian Constitution? Explain. [20 marks - 2019]

Q. Discuss the rules for interpreting the Indian Constitution. [20 marks - 2017]

Rules of Constitutional Interpretation in India

The true spirit of constitutional applicability lies in the way the courts interprete the provisions of the consitution. Constitution is made for the people of India, hence it is utmost important that the judiciary apply their minds while interpreting the constitution of India.

The following approaces are used to interprete the Constitution of India

1. Textual Approach of interpretation

In general the rule of interpretation of statute is to use literal rule of interpretation. Under this approach the court focuses on the literal meaning of the constitutional provisions. According to this rule, the words, pharases and sentences of a statute are ordinarily to be understood in their in their literal and grammatical meaning.

In A.K.Gopalan case the Supreme Court gave literal interpretation to Article 21 of the Constitution and refused to infuse the concept of procedure established by law with the principles of natural justice. 

2. Purposive Interpretation

In this interpretation the courts tries to look into the purpose for which the the provision or the statute in question was enacted in order to derive the correct interpretation such that it result in delivery of justice.

The Supreme Court in the case of State (NCT of Delhi) vs Union of India held that the judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation.

3. Doctrinal Approach

The following established doctrines are used by the courts to interpret the constitutional provisions

(a) Doctrine of Colorable Legislation

The doctrine of colorable legislation puts restrictions on the legislature while framing laws so that the legislature cannot transgress the provisionso enshrined under the constitution of India.

In KC Gajapati vs State of Odisha, the SC explained the doctrine and held that:

 if the constitution of a State distributes the legislative spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. 

(b) Doctrine of Pith and Substance

The doctrine states that the state and the union governments should enact laws within their specified areas as enshrined under seventh schedule and will not encroach upon the other's teritory. If however there is incidental encroachments, the courts will apply the doctrine of Pith and Substance

However, if one among the state and the Centre does encroach upon the sphere of the other, the courts will apply the Doctrine of Pith and Substance.If the true object of the legislation relates to a subject within the competence of the legislature that enacted it, it should be held to be intra vires although it may incidentally encroach on the matters not within the competence of the legislature.

The doctrine was applied for the first time by the Supreme Court in State of Bombay vs FN Balsara and upheld this. The State of Maharashtra restricted the sale and possession of liquor by the provisions of the Bombay Prohibition Act and the same was challenged with the rationale that it was an interference on the act of importing and exporting of the liquor through the borders. The apex court held that the impugned legislation was in pith and substance a State subject even though it incidentally encroached the subject enumerated in List I.

(c) Doctrine of Eclips

The Doctrine of Eclipse states that any law which is in contradiction with fundamental rights is invalid to the extent to which it is violating the fundamental rights. As soon as the inconsistency is removed, it will become valid automatically. The law remains overshadowed by the fundamental right. 

In the Keshav Madhav Menon v. State of Bombay case, the petitioner was prosecuted under the provisions of the 1931 act, the Indian Press (Emergency Powers) Act, for publishing a pamphlet with no permission.

In the case of FN Balsara, the Court declared Section 13(b) of the Bombay Prohibition Act of 1949 as void because it violated Article 19(1) (f) of the Constitution. The Court again held that only the part of the statute that is violative of Part III is inoperative and not the whole Statute.

(d) Doctrine of Severability

This doctrine provides that when any provision of a law which is not consistent with the fundamental rights, can be separated and will be declared void by the Court, the rest of the provision remains consistent with the relevant provisions.

The doctrine was applied by the Apex Court in the case of A.K.Gopalan v. State of Madras, where it was held that Section 14 of the Preventive Detention Act, 1950 was inconsistent with Article 22 of the Constitution only to the part which prohibited the person detained to make representation or even disclose the grounds to the court was ultra vires.

Essential Ingredients of Legal Right

Q. Discuss essential ingredients of legal rights in brief. [4 marks - 2023]

Essential Ingredients of Legal Rights:

Ownership: A person must be the owner of a right.

Duties: Rights and duties are important elements of law, and are correlated with each other.

Consideration: A vital element in the law of contracts, consideration benefits both parties and separates a legally enforceable contract from a legally unenforceable "mere promise".

Acceptance: An essential concept in law, acceptance is one of the elements required for a contract to be legally binding.

Capacity: An important element of the ability to lawfully sign and validly enter a contract.

Contract legality: A critical component of a valid contract, legality requires the contract to follow the laws of the state and not be against public policy.

Public and private rights: Legal rights can be considered as both public and private. Public rights are those rights which are vested within the state, that means every individual is subject to such right

The Doctrine of Harmonious Construction

Q. "The words of statute, when there is a doubt about their meaning is to be understood in the sense, in which they best harmonize with the subject matter of the enactment." Discuss. [20 marks - 2023]

Q. Explain the rule of Harmonious Construction. [10 marks - 2020, 2019, 2017]

The Rule of Harmonious Construction

The doctrine of Harmonious Construction is used to remove the conflicts between two or more statutes or between two or more parts of the statutes. According to this rule, a provision of the statute should not be interpreted or construed in isolation but as a whole, so as to remove any inconsistency or repugnancy. The courts must avoid a clash on contradicting provisions and they must construe the opposing provisions so as to harmonize them. When the court is unable to reconcile the differences between opposing provisions, the courts must interpret them in such a manner that both the opposing provisions are given effect as much as possible.

Objective of Harmonious Construction:

The main objective of harmonious construction is to avoid any conflict between two provisions of a statute by harmonizing it. 

The real legislative intent cannot be to provide for something in one provision and deny the same in other one. It is considered to be unintentional and as such, is required to be cured by way of harmonious construction.

Basis of Harmonious Construction:

The Doctrine of Harmonious Construction is based on the principle of law that every statute has been formulated with a specific purpose and intention and thereby should be read as a whole. To avoid conflict, the adopted Interpretation of the Statute should be consistent with all its provisions.

Principles of  the Rule of Harmonious Constructions Laid down in leading cases:

1. Commissioner of Income Tax Vs Hindustan Bulk Carriers, 2003

The Courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them. 

2. Sultana Begum Vs Premchand Jain, 1997

When it is impossible to completely reconcile the differences in contradictory provisions, the Courts must interpret them in such as way so that effect is given to both the provisions as much as possible. 

Leading cases on Doctrine Of Harmonious Construction

1. Venkataramana Devaru & Ors. Vs State of Mysore & Ors., AIR 1958 

The Supreme Court applied the Rule of harmonious construction in resolving a conflict between Articles 25 (2)(b) and 26 (b) of the Constitution of India 

2. M. S. M. Sharma Vs Krishna Sinha & Ors, AIR 1959 

The Supreme Court applied this rule to resolve the conflict between Articles 19 (1)(a) and 194 (3) of the Constitution of India