Human Rights - Judicial Activism to Indian Context
(A) What is Judicial Activism?
Judicial activism comes down to making law. Among other formats, a law can be in the form of State statute, a Federal State, or, the U.S. Constitution. Article I, Section 8, Clause 10 of the U.S. Constitution state that Congress shall have the power to make all law. Every State Constitution has a similar provision.
If a Judge makes law, then that Judge is a judicial activist who engaged in judicial activism. If a Judge implements the law as enacted by the legislature, then` that Judge is doing their job. This leads to the question; what does it mean to make law? Making law comes down to two things- (i) Creating the language of a law and (ii) giving meaning to the language term in a law. The Judicial activism comes down the second part.
If a Judge gives a meaning to a language term in a law, then that Judge is making law and a judicial activist.
S0 what is the difference between “giving meaning” to a language term in a law and “Implementing the 1egìs1ator’s meaning of a language term in a law? The answer lies in evidence a Judge select to assert, a meaning of a language term ix; a law.
Evidence can either come from one of two sources. The first source (Intrinsic evidence) is from the 1egis1ator’s themselves. For example, Congress uses the Congressional Record to record its evidence of its meaning of a language term in a law. The-send source is from everywhere, but? The Congressional Record. The second source (Extrinsic evidence) includes dictionary definitions, previous court opinions, the Writings of legal scholars and the Judge’s personal beliefs.
If a Judge uses the second Source as the evidence of the meaning of a language term in a law, then that Judge will give his/ her own meaning to the language term in a law. Here, the Judge is a judicial activist engaged in the practice of judicial activism.
If a Judge uses the first source as the evidence of the meaning of a language term in a law, then that Judge will implement the legis1ator’S meaning of the language term in a law, Here, the Judge performing the job for which they were hired.
How do I Spot judicial activism? “In a Court issued opinion, look at the source of the evidence that the Judge uses to give meaning to a language term in a State statute, Federal statute, or the U,S. Constitution. If the source of the evidence is from dictionary definitions, previous court opinions, the writings of legal scholars, or the Judges personal beliefs then you have just found an example of judicial activism.”
The primary concern of the shear number of people currently awaiting trial in India, many held in remand for excessive period. The problem of the backlog of cases was summarized in statistics released by the Ministry of Law 85 Justice. In March, 1994, 38,728 cases were pending with the Supreme Court alone and in the various High Courts throughout the country, with an additional 2.7 million Cases in the subordinate Courts.
The USA State Department, in its annual review of human rights in countries around the world, concluded, system is overloaded. The result has been the detention of persons awaiting trial for periods longer than they would receive if convicted more than 111,000 criminal cases were pending in the Allahabad High Court, the most serious ease backlog in the country of which nearly 29,000 cases had been pending for 5 to 8 years.
(B) Corruption
In a well publicised case, that of Justice V. Ramaswami, Chief Justice of the Punjab & Haryana High Court (and who was later to sit on the Supreme Court) he was found guilty of 11 Courts of behaviour which was unbecoming at a Judge.
Instead of resigning from the Benet; after an audit note had found irregularities about the purchase of household item and other perks, he was defiant against the public outcry. Moreover, protests from the Bar were ineffective and even when Parliament intervened and the Speaker setup a Committee to investigate the allegations (where he was found guilty), Justice Ramaswami refused to resign.
More recently has been the resignation of Chief Justice A.M. Ballacharjee at the Bombay High Court who was paid $ 80,000 in royalties for the publication of a book, Muslim law and the constitution. A phenomenal amount for what is a specialist publication, moreover, the company which made the payment is not recognised as a publishing house. The was that the deal was actually a payoff for fixing certain judgement. His sudden exit, without any formal inquiry being initiated by Justice A.M. Ahrnadi, Chief Justice of India, raised even more troubling question about the probity of the higher judiciary.
In the recent independence ………………….. of the Uttarkhand tribals there was a crude attempt of cover up of rape and murder of demonstrators by the police. Central to the Conspiracy was the District Magistrate Anant Singh who emphatically, denied the mass rape and that there were no death in the police firing. Again in Bombay, a no confidence motion has been moved by the High Court Bar Council against Justice P.S. Gupta of the special Court for inexplicable delays in passing orders (and) for issuing contempt notices at the drop of a hat. Justice P.S. Gupta had issued notices the three different lawyers within a 6 month period in 1994.
(C) Nepotism
To contract allegations of nepotism the Chief Justice of India, M.N. Venkatchaliah, has transferred at least 70 Judges to different parts of country the target is to have a third of the Judges in each High Court from outside the State, in a bid to check growing allegations of corruption and nepotism in the judiciary.
However, according to a recent article in the same journal, these plans have had little effect about a fifth of the 44 Judges serving in the Bombay High Court are said to have relatives practising in the same Court.
Despite this on 4 April, 1995, a resolution signed by 166 advocates, seeking to censure the relatives of Judges from practising in the same court was defeated by the Supreme Court Bar Association. The resolution sought to case public misgivings about the impartiality of the courts, it also asked a Committee to be set up to monitor how many Judges have relatives in the legal profession.
Specific to Punjab Amnesty highlighted the Case of detainees who had been tortured, on 26 April, 1988, the Supreme Court ordered officers of the Punjab Government to lay evidence against 21 Police officers identified as having tortured detainees at Ladhakhaki Jail in 1984 and 1985. But the Secretary to the Punjab Government charged with carrying out the order told the Supreme Court he was unable to do so in a case with political overtones. As a consequence, none of the 21 Police officers have been brought to justice, more than six years after the event.
(D) Human Rights; watch Asia
Unlike Amnesty International. who have consistently been refused permission to visit Jammu En Kashmir and Punjab Human Rights Watch Asia have been able to send researchers to both these State la result of different working practices rather than favouritism by the Indian Government), in its report, India, continuing repression in Kashmir; the organisation found considerable evidence to show that judiciary is an important tool lacking the teeth or will to bring to justice paramilitary or police personnel who have violated human rights. Although the Indian Government claims to have prosecuted security personnel for abuses, official have never responded to queries from human rights watch Asia as to the specific regarding the nature of abuses, the identity and rank of those responsible for abuses, and what punishment have been ordered in many cases.
The organization also included a summary from the USA State Department Country Report on human rights practices for 1993 which stated, extrajudicial execution in areas facing separatist insurgency were generally tolerated by State authorities. There is no evidence that a member of the security force have been punished for an incident of custodial death or custodial torture.
(E) Suggestions for Letters
The death of Kulwant Singh, Amarjit Kaur and Kiranbir singh, in suspicious circumstances has not been fully investigated. Please ask the relevant authorities to undertake the following authorize on immediate and impartial investigation into the death of Kulwant Singh, Amarjit Kaur and Kiranbir Singh, allow the finding of this investigation to be made public, and ensure that if police personnel are found to have been involved they be brought to justice.
(F) Disappearances
If you are concerned for the plight of any of the disappearance victim noted above then please write to one of the appropriate addresses below ………………… the Indian Government to implement the following measures:
(G) Harassment and Intimidation
You may wish to include some of the following points¬-the advocate act provides that an advocate shall be entitled to practice throughout India. Even the rules framed by the Bar Council of India provide that an advocate is duty bound to defend litigants and the ethical situations is that he or she cannot refuse the taking of a brief.
That a statement be made to reassure lawyers who works for suspected militants and those seeking justice as victims of human rights abuses, that their work will be allowed to continue unhindered from police intimidation or intimidate from members of the state authorities of the paramilitary forces under their control.
***************************************************
Dr. Dashrath Choudhary
Assistant Professor, Sanskrit,
Govt. Arts – commerce – Science College,
D.N.H., Silvassa
Home | Archive | Advisory Committee | Contact us