Judiciary and Social Change

    When two people have a fiery dispute between each other, customarily “I will see you in the court of law” is one of the most popular statements that is used. This statement isn’t just a statement made of nine words, it is the purest example of faith, faith in the court of law, faith in the outcome, faith in the system that is in existence since time immemorial. Judiciary is that object which has the utmost importance since time immemorial. It is also an object whose absence can trigger major repercussions.

    Introduction

    Humans have a natural tendency of attaching themselves with someone or something which carries any considerable value, they have an ambition and these ambitions for the most part are personal while some ambitions are for the amelioration of the society. And when this something or someone is not achieved or gained or when society is not beaming or is facing agonies, then some humans or organisations turn towards bringing vital change in their life or in the society. These changes that they bring in the process are sometimes through ways which are acceptable in the eyes of law and untroubled for the society, thus, keeping it safe and healthy. Although these changes or acts are not always admirable and thus, when the extremity of fatalistic acts increase then the role of judiciary comes into the picture. These selective objects which are the part and parcel of the society are therefore, a threat to law and order and humanity. But as Mahatma Gandhi once said that “You must not loose faith in humanity. Humanity is an ocean, if a few drops of the ocean are dirty, the whole ocean doesn’t become dirty.”[1] So is the case with society, if some critically destructive agents rise in the society, it doesn’t mean that the society would face dead-end, society would still have a hope of reviving itself and it is, therefore, the role of the judiciary to take the action in its hands, because at the end, it is the law that is supreme and its absence makes a society an ocean, without a drop of water.

    In India, judicial activism took its definite form in the late 1800s, although it got popular only after the 1900s and since then the judiciary has done a lot for the betterment of the society. It is the most vital organ of any state, it is its restorative power that helps a society to stay stable and keep on progressing without any hindrances. When Social changes are in their inceptive phases, it is very common that they would be unacceptable, since it is human nature to resist the changes even when those changes are for good. Similarly, when judicial bodies outpour their decisions, they are likely to be protested against, since the society is in its idle state during the whole judicial process and when the decision is made, regarding any subject which is close to the society and is most likely to hurt the larger sentiments if played around. Although this entirely isn’t the fault of society, since if the decision that was made, wasn’t properly checked and furnished and was brought forward ignoring the consequences, the blame falls on the law enforcing bodies as well.

    Also, the judiciary has no scope on deciding for some matters. Matters like whether or not the war should be declared, whether a particular nation should be accorded recognition, military strength and the number of troops it needs to have, courts thus, recognise their limitations and do not pronounce upon such matters. These matters can affect any well-developed society but the judiciary is bound by the constitution and therefore, it needs to be inside the periphery set by our constitution.[2] Judiciary and society have a symbiotic relationship which means that both of them cannot survive if there is an absence of any of the one. The modern world has seen many societies going nowhere because the absence of judiciary, and judiciary cannot come into existence if there is no society. Indian judiciary has played a vital role in shaping the pathway of Indian society. From Shayara Bano v. Union of India and Ors[3] to Common Cause v. Union of India[4], it has given abundant such judgements which have done nothing but just bring altruism in the society.

    Origin of Judiciary and Judicial Activism

    Judiciary has solidified its existence for a thousand years and it has been standing strong for many ages. There is no such designer of the judiciary and it is a bit sceptical to identify which country was the first one to introduce the concept of the judiciary and also, the judiciary keeps on evolving itself, so as to meet the needs of our society. Although there are some dissenting facts to the fact that the judiciary is all neat and clean, it has been the most independent and successful institution undoubtedly.

    When the ancient age or to say Vedic era is analysed, the result obtained from the analysis is that, we don’t discover any reference as respect to the foundation of the legal method. The law of old India was formed by the idea of ‘Dharma’, or rules of the right direction, as the plot in the different manuals clarifying the Vedic sacred texts, for example, ‘Puranas’ and ‘Smritis’. The ruler had no free authority yet got his forces from ‘Dharma’, the power acquired for dharma wasn’t a normal power, it came with an extreme effectivity, no one could dare challenge the rules made by the king, he was subjected to uphold the ‘dharma’. The qualification between a civil wrong and a criminal wrong was clear. The Maurya Administration, which had reached out to significant pieces of the focal and eastern locales during the Fourth Century, B.C., had a thorough punitive framework, which endorsed mutilation just as capital punishment for even inconsequential offences.

    For many years the judicial activism was quite silent in India, therefore, for an extended time, the Indian legal executive had taken a conventional frame of mind to the very idea of legal activism. In any case, it is inappropriate to state that there have been no events of legal activism in India. Some dispersed and some irregular episodes of legal activism occurred from time to time. In any case, they didn’t go to the spotlight as the very idea was not known to India. In any case, the historical backdrop of legal activism can be followed back to 1893 when Equity Mehmood of the Allahabad High Court conveyed a contradicting choice which planted the seed of activism in India.[5] It was an instance of an under-preliminary who couldn’t have the fortitude for connecting with a legal counsellor. The juristic community has been active since independence, it has tried to shape the society in a more lenient way so that no deprived section gets oppressed. It has played a distinct role in making decisions which would not only affect the urban class but also the rural class. For example in the year 2017, in KS Puttuswamy v. Union of India and Ors [6], the Supreme Court of India proclaimed that the right to privacy is protected as the fundamental right under Articles 14, 19 and 21 of the Constitution. There are many examples of the judgements that the Supreme Court has delivered in the span of 5 years itself.

    Changes happening via Supreme Court

    This statement delivered by Soli Sorabjee perfectly displays the abilities that the Supreme Court beholds.“An appraisal of the role of the judiciary in our country confronts one with more than one paradox. The first is that the judiciary, which is regarded as the weakest branch of the State, because it has neither the power of the sword nor of the purse, in effect and reality is pretty powerful because of the impact of its decisions on the life of a nation.”[7] It seems as if that Supreme Court has limited powers but in reality, it has powers which are sufficient for bringing a vital social change. Indian Young Lawyers Association v. The State of Kerala[8] is one such case of the many that the Supreme Court has beautifully dealt with. The decision was unpredictable and therefore, it made quite a chaos around the issue. It dealt with giving entry to women of the age 10 to 50 (menstruating age) in Sabarimala temple. The Supreme Court made sure that no religious sentiment got severely hurt in the process, although there was protest around the temple and women weren’t allowed to enter for some couple of days. It became a historical judgement and strengthened the path of women equality.

    Navtej Singh Johar vs Union Of India Ministry Of Law[9] is a case which was brought by NAZ foundation, the NAZ foundation works for the HIV/AID sufferers. It argued that section 377 was unconstitutional. Section 377 violated the fundamental right which is guaranteed under Article14(3), Article 15(4), Article 19(5), Article 21(6) of the constitution of India. Finally, on 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India[10] that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”.

    The Constitution of India has sought to create a more equal and a just rule of law between individuals and groups than what existed under traditional authorities in ancient India and the judiciary has further tried to maintain dignity in respect to what the constitution has offered to India. The Indian Constitution strives to eliminate the humiliation that people suffered under the traditional social system of caste and patriarchy, thus creating new ground for the realisation of human dignity. Judiciary, thus, tries hard to not be inconsiderate regarding the oppressed sections, thus, it has used Schedule Caste and Schedule Tribe (Prevention of atrocities) Act, 1989 many times for ensuring the dignity of marginalised communities.

    Narmada Bachao Andolan v. Union of India

    Narmada Bachao Andolan v. Union of India[11] was a case in the Supreme Court of India which gathered a lot of attention to it. Many environmental activists and educated people condemned the Supreme Court’s decision since the Supreme Court clearly disdained the petition against the construction of a dam on the river Narmada. The Court furthermore ordered indigenous people and tribes of the region to not intervene in the construction and also to get away from the path of the construction. In this decision, the Supreme Court considered the Indigenous and Tribal Peoples Convention of 1957 and the ILO Convention No. 107. It also took principles of international environmental law into consideration.

    This judgement distinctly gave the notion that the Supreme Court doesn’t look for the emotions involved in the case, it just validates whether or not the main subject crosses the boundaries set by the Indian Constitution.

    Mukesh and Another v. State(NCT of Delhi)

    A rape case that shook the whole country, it made the whole world question the security of women in India. On December 16, 2012, a 23-year-old lady had gone out to watch cinema in PVR Select City Mall, Saket with her friend. Later that night, when they were returning, 6 men brutally raped the girl and caused non-fatal injuries to her friend. Those 6 men later threw the victims out of the bus and tried to run the bus over their bodies. Female victim was carried to the hospital, but she couldn’t withstand the brutality the accused had committed. The victim suffered enormous anguish and pain for the days that she was alive. The case in its true sense gave chills to the Indian citizens. While upholding the death penalty of the case, Honourable Supreme Court judge Justice Bhanumati said “Crimes like the one before us cannot be looked with magnanimity. Factors like the young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime remorse and post-crime good conduct of the accused, the statement of the accused as to their background and family circumstances, age, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of rarest of rare cases.”[12]

    After this horrific incidence, the then finance minister announced setting up of Nirbhaya Fund, where government contributed Rs.1000 Crores for safety and empowerment of women and girl children.[13] Five fast track courts were set up for expeditious adjudication of cases related with sexual assault. Judiciary played a huge role for contributing to women’s safety and upholding death penalty in Nirbhayas case.

    Prohibition of Alcohol along National Highways

    In request to address the expanding threat of alcoholics and their driving, the Honourable Supreme Court on 15th December, 2016 arranged to prohibit the selling of alcohol along the expressways. This prompted issues on the part of executing offices and approach producers. Numerous states had still left with the authorised period and the sudden request by the Supreme Court got a parcel of disarrays. Many bar proprietors picked a new methodology of having corner to corner pathways to show that the alcohol stores were a good way off which was more than the separation determined in the request. The request likewise raised the job worries for a large number of individuals who were subject to the alcohol business for their subsistence. All these prompted confusion with the absence of lucidity. This prompted Honourable Supreme Court to change the particulars of the request to address the different issues emerging out of the request and explained that the restriction marked down of liquor inside 500 meters of state and national parkways doesn’t make a difference inside city limits, allowing alleviation to the alcohol and cordiality industry. This way, the Supreme Court not only made a striking decision but also used it to bring social awareness regarding consuming alcohol while driving. Making such judgements isn’t possible without an active involvement of the general public. The Supreme Court would bring in change only if people want it and only if people request for it. If there would have been no such petition of banning liquor, then it would have been impossible for the Supreme Court to make a required change. It is, thus, proved that judiciary is fruitful only if the people of the country give water to it.[14]

    This type of changes usually have a negative impact and therefore judiciary becomes a pain provider for executives and ministries. Such decisions, although, do not take place very often but when they are made, they make sure to disrupt the social stability and intrinsically they inflict damage to the economy as well.

    https://legalreadings.com/doctrine-of-harmonious-construction/

    Article 131

    Capacity to choose Inter-legislative debates. Since Indian Constitution sets up a government which has no other option but to end up in a disputes which are intergovernmental, intergovernmental questions frequently emerge, Article 131 takes care of such cases by giving an instrument to settling such questions rapidly at the most elevated legal level.[15] Under this arrangement, the Supreme Court has selective unique locale in any question between the inside and the state, or the middle and state on one side and a state on the opposite side, or between at least two States. A question to be reasonable under this article ought to include an inquiry of law or actuality on which the presence or degree of lawful right depends. In other words that the contest must include statement or vindication of a legitimate right of the Government of India or a state. Inquiries of political nature not including any lawful viewpoint are rejected from the Court’s view. When such a decision is made, which has a power of solving the intergovernmental disputes, then it is clearly evident that it would surely bring a social change in society. A change which would be either accepted or neglected at its extremity.

    Social Change through PIL

    The idea of PIL came from “actio popularis” of the Roman jurisprudence which permitted court access to every citizen in the matters of public wrong. Since the development of PIL, It has been quite influential in shaping the judicial pathway as well as the political pathway of the country.[16] Public Interest litigation is nothing but a process through which a person can bring a change which society needs, and all this is done through just litigation. On account of this type of litigation the court has found a chance to give directions in public interest and enforce the public duties. The strategy has brought to light many medieval practices still predominant in India such as relief to prisoners, the plight of women in protective homes, victims of the flesh trade and children of juvenile institutions and exploitation of the bonded and migrant labourers, untouchables, tribal etc.[17] The attempt has been made to show how in taking up such cases, the Supreme Court is coming into view as the guardian of the rights and liberties of the victims of repression, cruelty and torture. Hence, the Supreme Court of India in its activist role vis-a-vis PIL has taken a goal-oriented approach in the interest of justice by clarifying highest technical and anachronistic procedures18.

    Judiciary: Boon or a Curse?

    Founding fathers of our constitution had a very clear view of how the judiciary should perform. They trusted not the legislature or executive but the judges who sat in the Supreme Court. Since the legislative houses are filled with emotions and alternative motives of some men, they were out of the picture for our founding fathers. They trusted judiciary not because of the myth, that judges are some men with divine intellectuals but because judges of the supreme courts were more inclined towards bringing in the change society required and they were furthermore responsible for the social change that could be brought in the country with some judicial verdicts.

    The unpredictability of the judicial pronouncements have certainly made a common man think twice before going into the court of law. Sometimes this unpredictability leads to conflict between the courts and parliament. This quarrel shifts society’s welfare to a topic of secondary importance and makes the ego-satisfaction of the two bodies a topic of primary importance. This leads to the neglect of important social matters[19]. Even with these shortcomings, the judiciary hasn’t completely failed, there have been many incidences where the judiciary has played a vital role in bringing positive change in society. One of the most gruelling tasks for democracy is to prove to the country that it appropriately balances the demands of the majority as well as minorities. Parliament although satisfies the impulses of majority but it does so by upholding the values of our constitution and furthermore if it fails in recognising the minorities then the judiciary acts as a knight in the shining armour for the minorities. Judiciary isn’t concerned with the thought behind the act, it mainly focuses on constitutionality. If the act pierces through the armour of the constitution then and then the judiciary strikes it down. For example, if the legislation passes an act to prohibit the consumption of liquor, it is not the duty of the judiciary to check the sagacity behind the policy, it would only strike down the policy if the policy discriminates between the classes and communities[20]. Therefore, it is completely baseless to hold the supreme court accountable for the policies made by the legislature. Founding fathers made it very clear that the constitution limits the power of authorities and judiciary is a tool that the constitution uses to do so, it can only limit the effect or nullify the effect of any policy that has to be implemented and cannot stop the making of such policies.

    Conclusion

    Judiciary is one of the most significant institutions that helps a country achieve greatness, if this institution goes through a shakedown, the entire state machinery might collapse. Because when legislative bodies pass the laws, and when these laws are implemented on the larger public without any measurement of the pain that it may cause to the social order, it is the judiciary which helps the society in such scenarios. Basically, the judiciary can be called as the repairing tool for any nation, its importance cannot be subjected to comparisons. The administration must act conclusively to end this arrangement of equity being deferred and being distant from anybody other than the well-to-do. A decent start is to declare setting up of courts in each and every region and to designate a large number of new judges so that the workload significantly decreases and therefore this decrease in workload will make the judicial system functioning smoother and better. The Law Commission has, although, prescribed hearing cases ceaselessly, staying away from delays and arriving at quick decisions, it is the matter of time when the reality of this declaration will reveal its effectiveness. This is conceivable just when the caseload per judge is of a sensible size. Changing the arrangement of designating judges and considering their working responsible, should be another priority. The official and the lawmaking body must assume a job simultaneously. The individuals are a definitive sovereign. Their chosen agents in Parliament must if important by the board, endorse candidates picked by the legislature in meeting with the legal executive.

    Social change is subjective in nature, it can not be clearly presumed that the change that the judiciary will suggest would only result in improvement in the social conditions of people. It needs time for a judgement to become effective and therefore patience is expected from the general public. If the public doesn’t have faith in the juristic community then the presence of any judicial system falls in the ambit of scepticism.

    “Genuine equality means not treating everyone the same, but attending equally to everyone’s different needs.”

     – Terry Eagleton[21]

    References

    1 Debidatta Aurobinda Mahapatra and Yashwant Pathak (eds.), GANDHI AND THE FUCKING WORLD p.16, Lexington Books, 1st ed., 2018.

    2 Sorabjee, Soli J. “Role of the Judiciary: Boon or Bane?”, India International Centre Quaterley, vol. 38, no. 3/4, 2011, available at www.jstor.org/stable/41803975 (Last visited on February 2,  2020).

    3 Shayara Bano v. Union of India and Ors, (2017)9 SCC 1.

    4 Common cause v. Union of India, (2018) 5 SCC 1.

    5 Surbhi Singhania, Judicial Activism in India, International Journal of Law, vol.4, issue 2, p. 238-248.

    6  KS Puttuswamy v. Union of India and Ors, (2017) 10 SCC 1.

    7 Sorabjee, Soli J. “Role of the Judiciary: Boon or Bane?” INDIA INTERNATIONAL CENTRE QUARTERLY, vol. 38, no. 3/4, 2011, available at www.jstor.org/stable/41803975 (Last visited on February 2, 2020).

    8 Indian Young Lawyers Association v. The State of Kerala, WP (C) 373/2006.

    9 Navtej Singh Johar vs Union Of India Ministry Of Law, WP(Crl.)No.76/2016. 

    10 WP(Crl.)No.76/2016

    11 Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664.

    12 (2013)2 SCC 587.

    13 Nirbhaya Fund, Press Information Bureau Government of India, 29 November,2019, available at https://pib.gov.in/newsite (Last visited on February 2,2020).

    14 Surbhi Singhania, Judicial Activism in India, International Journal of Law, vol.4, issue 2, p. 238-248. 

    15 The Constitution of India, a. 131.

    16 Surbhi Singhania, “Judicial Activism in India”, INTERNATIONAL JOURNAL OF LAW, vol.4, issue 2, p. 238-248. 

    17 Yogendra Singh, SOCIAL CHANGE IN INDIA: CRISIS AND RELIANCE, HAR ANAND PUBLICATIONS, 30th July 2007, p. 167.

    18 Nadeem Hasnain, INDIAN SOCIETY: THEMES AND SOCIAL ISSUES, 1st ed, Mc Graw Hills, 16th November, 209, p.121.

    19 Sorabjee, Soli J. “Role of the Judiciary: Boon or Bane?” India International Centre Quaterley, 2011, available at www.jstor.org/stable/41803975 (Last visited on 2 Feb. 2020).

    20  Id.  

    21 Terry Eagleton, WHY MARX WAS RIGHT p.220, Yale University Press, 2011.


    BY RUSHIKESH D. PATIL | MAHARASHTRA NATIONAL LAW UNIVERSITY , NAGPUR

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