8.2.13. Earlier Cases of Judicial Activism

Judicial activism was made possible largely due to PILs (Public Interest Litigation). PIL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary's involvement in public administration. The sanctity of locus standi and the procedural complexities are totally side-tracked in the cases brought before the courts through PIL. In the beginning, the application of PIL was confined only to improving the lot of the disadvantaged sections of the society, who by reason of their poverty and ignorance, were not in a position to seek justice from the Courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions.

After the Constitution (Twenty-fifth Amendment) Act, 1971, by which primacy was accorded to a limited extent to the Directive Principles vis-a-vis the Fundamental Rights making the former

enforceable rights, the expectations of the public soared high and demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions have increased. Beginning with the Ratlam Municipality case, the sweep of PIL had encompassed a variety of causes. Ensuring green belts and open spaces for maintaining ecological balance; forbidding stone-crushing activities near residential complexes; earmarking a part of the reserved forest for Adivasis to ensure their habitat and means of livelihood; compelling the municipal authorities of the Delhi Municipal Corporation to perform their statutory obligations for protecting the health of the community; compelling the industrial units to set up effluent treatment plants; directing installation of air- pollution-controlling devices for preventing air pollution; directing closure of recalcitrant factories in order to save the community from the hazards of environmental pollution.

The decision of the Supreme Court in Bela Banerjee case, in which even after the Constitution (Fourth Amendment) Act, 1955 specifically laying down that no law concerning acquisition of property for a public purpose shall be called in question on the ground that the compensation provided by that law is not adequate, the Supreme Court reiterated its earlier view expressed in Subodh Gopal and Dwarkadas cases to the effect that compensation is a justiciable issue and what is provided by way of compensation must be "a just equivalent of what the owner has been deprived of".

Golak Nath case is also an example of judicial activism in that the Supreme Court for the first time, by a majority of 6 against 5, despite the earlier holding that the Parliament in exercise of its constituent power can amend any provision of the Constitution, declared that the fundamental rights as enshrined in Part III of the Constitution are immutable and so beyond the reach of the amendment process. The doctrine of "prospective overruling", a feature of the American Constitutional Law, was invoked by the Supreme Court to avoid unsettling matters, which attained finality because of the earlier amendments to the Constitution. The declaration of law by the Supreme Court that the Indian Parliament has no power to amend any of the provisions of Part III of the Constitution became the subject matter of animated discussion.

Kesavananda Bharati case had given a quietus to the controversy as to the immutability of any of the provisions of the Constitution. By a majority of seven against six, the Court held that under Article 368 of the Constitution, Parliament has power to amend any provision in the Constitution, but the amendment power does not extend to alter the basic structure or framework of the Constitution. Illustratively, it was pointed out by the Supreme Court that the following, among others, are the basic features: (i) Supremacy of the Constitution; (ii) Republican and Democratic form of Government; (iii) Secularism; (iv) Separation of powers between the legislature, the executive and the judiciary; and (v) Federal character of the Constitution. Supremacy and permanence of the Constitution have thus been ensured by the pronouncement of the summit court of the country with the result that the basic features of the Constitution are now beyond the reach of Parliament.