Ex­pected Role of Law and Lawyers

The in­clu­sion of mat­ters that might af­fect the pub­lic at large but do not nec­es­sar­ily re­late to the pro­tec­tion of fun­da­men­tal rights of the dis­ad­van­taged leads to its mis­use

The Day After - - CONTENT - By Priya Hin­gorani

The prin­ci­ple of sep­a­ra­tion of pow­ers es­sen­tially refers to the division of power among the three branches of gov­ern­ment, namely, ex­ec­u­tive, leg­is­la­ture and ju­di­ciary. The ar­eas of re­spon­si­bil­ity of each branch or or­gan have been set forth in the Con­sti­tu­tion, along with a ro­bust sys­tem of check and bal­ances. In con­trast to other ju­ris­dic­tions such as the US, the In­dian Con­sti­tu­tion does not, how­ever, con­tem­plate a strict sep­a­ra­tion of pow­ers. As a con­se­quence, there may be over­lap of cer­tain func­tions among the var­i­ous or­gans of the state. The na­ture and scope of the doc­trine of sep­a­ra­tion of pow­ers as ap­plied to the In­dian con­text has been the sub­ject of nu­mer­ous ju­di­cial de­ci­sions. The prin­ci­ple that emerges there from is that while each branch at times also per­forms other func­tions, the tak­ing over of an es­sen­tial func­tion of another branch is pro­hib­ited so as to pre­serve the ac­count­abil­ity of each branch of gov­ern­ment.

Let us now con­sider the role of the ju­di­ciary, which has ex­ten­sive pow­ers of re­view over the acts of the ex­ec­u­tive and the leg­is­la­ture that in­clude an ex­am­i­na­tion of the con­sti­tu­tional va­lid­ity of such acts. The power of ju­di­cial re­view has been held by the Supreme Court to form part of the ba­sic struc­ture of the Con­sti­tu­tion and thus not amenable to amend­ment by Par­lia­ment. Over the years, the scope and am­bit of ju­di­cial re­view in In­dia has been en­hanced al­most be­yond recog­ni­tion, the be­gin­nings of which may be traced to the ini­ti­a­tion of Pub­lic In­ter­est Lit­i­ga­tion (PIL) in In­dia.

PIL is a unique ju­rispru­dence that was con­ceived and ini­ti­ated in 1979 with Hus­sainara Kha­toon’s case (pop­u­larly

known as the un­der trial Pris­on­ers’ Case). This case was filed by my late par­entsH Nir­mal Hin­gorani and Kapila Hin­go­raniH then prac­tic­ing lawyers in the Supreme Court of In­diaH pro bono pub­lico on the ba­sis of news­pa­per ar­ti­cles pub­lished in the In­dian Nx­press. The ar­ti­cles high­lighted the pitiable con­di­tions of pris­on­ers lan­guish­ing in jail in the state of Bi­har with­out trial for cru­elly long pe­ri­ods of­ten for sim­ple of­fences such as tick­et­less travel. The pe­ti­tion was filed by my par­ents to se­cure the re­lease of un­der trial pris­on­ers who were un­known to themH thereby de­part­ing from the tra­di­tional re­quire­ment of lo­cus standiH and was based on a novel in­ter­pre­ta­tion of Ar­ti­cle 32 of the Con­sti­tu­tion which guar­an­tees the right to move the Supreme Court by ap­pro­pri­ate pro­ceed­ings for the en­force­ment of fun­da­men­tal rights. This case re­sulted in the Supreme Court read­ing the right to speedy trial as be­ing an in­te­gral part of the fun­da­men­tal right to life and lib­erty con­tained in Ar­ti­cle 21 of the Con­sti­tu­tionH and to the im­me­di­ate re­lease of about 40H000 un­der trial pris­on­ers across the coun­try.

Hus­sainara Kha­toon’s case started the trend of read­ing new im­plied fun­da­men­tal rights as part of Ar­ti­cles 14H 19 and 21 of the Con­sti­tu­tionH which was fol­lowed by the Court in sub­se­quent PIL cases. This has had an im­mense mo­bil­iYing ef­fect through­out the coun­try with in­nu­mer­able PIL pe­ti­tions be­ing filed by pub­lic spir­ited citiYens. Over timeH PIL has de­vel­oped into an ex­tremely ef­fec­tive re­me­dial ju­rispru­dence and has made courts truly ac­ces­si­ble to the dis­ad­van­taged and weaker sec­tions of so­ci­ety.

Fur­ther­moreH given the pur­pose of PIL to pro­tect the fun­da­men­tal rights of the marginal­iYed lack­ing ac­cess to courtsH the ex­pan­sion of the ju­di­cial role to that ex­tent does not im­pinge upon the prin­ci­ple of sep­a­ra­tion of pow­ers. This is so even where the Court gets in­volved in pol­icy is­suesH or frames guide­lines where none ex­ist such as in Vishaka’s case re­lat­ing to sex­ual ha­rass­ment at work­place. As has been pointed out by judges on sev­eral oc­ca­sionsH the at­ten­tion be­ing given by the ju­di­ciary to PIL is not prompted by am­bi­tious no­tions of ju­di­cial ac­tivism but by the ne­ces­sity of the sit­u­a­tion ow­ing to the in­ac­tion or fail­ure of the other branches of gov­ern­ment.

Be that as it mayH it is true that the scope of PIL as it ex­ists to­day has been con­sid­er­ably en­larged and is no longer lim­ited to its orig­i­nal pur­pose. The in­clu­sion of mat­ters that might af­fect the pub­lic at large but do not nec­es­sar­ily re­late to the pro­tec­tion of fun­da­men­tal rights of the dis­ad­van­taged has led to its mis­useH amid al­le­ga­tions of ju­di­cial over­reach. It is im­per­a­tive that such mis­use is checked through the col­lec­tive ef­forts of lawyers (by not fil­ing friv­o­lous PIL mat­ters or those that do not strictly per­tain to ba­sic hu­man rights of the marginal­iYed) and of judges (by pro­mot­ing ju­di­cial re­straint and en­ter­tain­ing only those PIL mat­ters aimed at pro­tect­ing the rights of those who lack ac­cess to jus­tice on ac­count of poverty or other dis­abil­ity). Other­wiseH the re­sul­tant lapse in con­sti­tu­tional ac­count­abil­ity would lead to a vi­o­la­tion of the con­cept of sep­a­ra­tion of pow­ers.

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