ALF 10th Anniversary Talk: Honb'le Justice A. P. Shah
Justice Shah, formerly Chief Justice of the Delhi High Court has authored several important opinions in the areas of freedom of speech and expression, environmental rights, disability rights and women's rights. One of Justice Shah's most important decisions has been the decision in the Anand Patwardhan (1997) cases in which the court quashed the orders of the government not to telecast the President's Award winning documentaries "In Memory of Friends" (based on terrorism and violence in Punjab) and "Ram Ke Naam"(based on the Ayodhya issue, and directing Doordarshan to telecast those documentaries. Justice Shah also struck down the decision of the Censor Board not to release the documentary 'Aakrosh' on the 2002 Gujarat pogrom, directing that the film be granted certification.
Professor Upendra Baxi, Mr. Lawrence, Mr. Arvind Narrain, my friend Justice Shylendra Kumar, distinguished ladies and gentlemen first I would like to thank the forum for inviting me for today's function of the completion of ten years of the Alternative Law Forum and for giving me an opportunity to address this enlightened crowd in Bangalore. ALF, started in 2000 by a very small group of lawyers very committed to a practice which would respond to social and economic injustices, has grown in stature these past years and has today become a platform to address all issues of importance and political and social justice. I congratulate Lawrence, Arvind Narrain and all his colleagues for completion of these ten years and also for the good work done by them in diverse areas such as prisoner's rights, gender rights, sex workers' rights, socio-economic rights and also political and civil rights.
The title of today's subject, "Courage, Craft and Contention," is inspired by Professor Baxi's book with the same name, containing his H.R. Khanna lectures in Bombay University in 1981. Professor Baxi then ably articulated the emergence of an activist Supreme Court in the period from 1977 onwards as it began to see itself as the last resort of the oppressed and the bewildered, seeking to restore to the Indian citizens the minimal dignity of citizens with rights. Professor Baxi argued that the role of justices in advanced capitalist society of the first world is necessarily different from those in developing countries of the second world. He makes an interesting distinction between an active judge and an activist judge. According to him an active judge regards him/herself, as it were, as a trustee of state regime, power and authority. Accordingly, he/she usually defers to the executive and the legislature, shuns any appearance of policy making, supports patriarchy and other forms of violent social exclusion and, overall, promotes stability over change. In contrast, an activist judge regards him/herself as holding judicial power in fiduciary capacity for the civil and democratic rights of all people, especially the disadvantaged, dispossessed and the deprived. He/she does not regard adjudicatory power as a repository of the reason of the state, he constantly reworks the distinction between the legal and political sovereign in ways that legitimate judicial action as an outcome of the adjudicative function.
Judicial creativity is part of legal existence. Such creative judicial law-making is the task of the Supreme Court. Judges tend to be apologetic about their creative role. They do so mainly because of their non-representative character. But our non-representative character, our non-political accountability, is not a source of our weakness. Rather, it is the main source of our strength. Courts are not representative bodies and it would be a tragedy were they to become representative. Courts are reflective bodies. They reflect the basic values of the system.
Ladies and gentlemen, I feel that the Indian Constitution is an activist Constitution and justices would be betraying the letter and spirit if they did not acknowledge its broad and purposive sweep. Courts cannot interpret law, much less a constitution, in a mechanistic manner. In the case of a statute the courts must find the original intention of the authors. In the case of a constitution, the court must sustain constitution's relevance in changing social economical and political scenarios. The original intentions of the framers do not bind a constitutional court. Rather, the court is free to interpret the constitution in terms of what the framers intended under the circumstances that exist at the time of interpretation. In the absence of such judicial activism, a constitution would become stultified and devoid of that inner strength necessary to survive and provide normative order of the changing times.
With these preparatory remarks, I proceed with my presentation which I have divided into three parts. First, fundamental rights and fundamental rights protection by the judiciary during 1950 to 1975. Second, the emergence of an activist Supreme Court in the late 70's where, in the words of Professor Baxi, the Supreme Court of India has become the Supreme Court for India. And the last part is about the effect of globalisation on the Constitution and constitutionalism.
Let me go to the basics – the Indian Constitution is perhaps the longest Constitution in the world. The preamble aims to secure to all of its citizens justice: socio-economic, political, liberty of thought, expression, belief faith and worship and equality of status and opportunity. These aims were not merely aspirational because the founding fathers wanted to achieve social revolution through the Constitution. Part Three of the Constitution contains a very impressive array of fundamental rights or basic human rights which resemble the Bill of Rights. The framers vested the Supreme Court with the power to declare the law and to quash as unconstitutional any law or order that transgresses any fundamental rights. This power, which is otherwise known as judicial review, of the Supreme Court to issue writs enforcing fundamental rights is itself a fundamental right. The framers deemed the court to be part of the state. According to Austin, the Supreme Court's function was to protect the social revolution.
One of the most distinctive features of the Indian Constitution is the inclusion of social justice provisions. Part Four of the Indian Constitution enumerated certain directive principles of state policy. Though not judicially enforceable, but nevertheless fundamental in the governance of the country, the directive principles focus on the states' efforts in securing a means of livelihood, preventing concentrations of wealth and means of production to the common detriment, protecting children and the health of all, providing equal justice and free legal aid, protecting the right to work, protecting the right to education and to public assistance, providing humane working conditions, providing for a living wage and for a participation of workers in the management of industries among others.
Despite this tremendous influence of the American Constitution, particularly the Bill of Rights, in framing Part Three of the Constitution, the Due Process Clause is conspicuously absent. Proposed Article 15 of the draft constitution read as follows: "No person shall be deprived of his life, of life, liberty and property, without due process of law." It appears that accepting the advice of American judge Felix Frankfurter, the framers eliminated the original Due Process Clause. It is stated that Justice Frankfurter told Mr. V N Rao the secretary of the Constitutional Assembly, that this Due Process Clause is the chief source of all this judicial activism in the U.S. So finally, the Article 21, which was originally Article 15, which reads: "No person shall be deprived of his life or liberty except according to procedure established by law". The words, 'except according to procedure established by law' were borrowed by the framers from Article 31 of the Constitution of Japan. Now there is no mention of the specific type of procedure required to deprive a person of his life and liberty and there was some criticism on this account. So Article 22, which was originally article 15A, was enacted to guarantee the right to a fair trial. Dr. Ambedkar said that by this Article, the framers provide the substance of the law of Due Process. The other aspect which is important is that Clause Two through Clause Six of Article 19 articulates the grounds on which a reasonable restriction could be placed on the fundamental freedoms enumerated in Article 19. Obviously, the authority to decide the reasonableness of the grounds is that of the court. So these provisions, in effect, implanted the seeds of Due Process in the Indian Constitution.
During the early period of the Supreme Court, the constitutional issues pertaining to land reform legislation and grievance of the landed gentry. From the adoption of the Constitution in January 1950 to the declaration of the Emergency in 1975, the Indian Supreme Court had been a force of conservatism. The court invalidated legislation on agrarian reforms in 1967 and as you know, in Golaknath's case, the Supreme Court by a majority of six to five held, that the parliament had no power to amend Part Three of the Constitution. In 1970 the Supreme Court invalidated the bank nationalisation laws and the abolition of privy purses. Then the amendments were introduced in 1971 to reassert parliament's right to amend every part of the Constitution and to make any challenge immune in courts to legislation made in pursuance of the directives of the state policy in Article 39 (b) and (c) of the Constitution. These constitutional amendments came to be challenged in the famous case of Keshavananda Bharti v. State of Kerala before a 13- judge bench. The Supreme Court, by a majority of seven to six, held that parliament had full power to amend the Constitution. But, because it has the power only to amend, it must leave the basic structure or framework intact. The basic structure doctrine is based on the hypothesis that the power of constitutional amendment could not be made equal to the power of making a constitution. There is lot of criticism directed against this judgment. If the founding fathers wanted to make certain provisions as entrenched, they would have said so in clear words or marginal notes, but there is no indication in the Constitution and, therefore, it is now left to the individual judges to decide about the basic structure of the Constitution according to his/her own value. For example, suppose in a constitution there is a provision that it can be amended by a referendum and 90 % of the population says that this constitution needs to be amended, can the courts still maintain that this amendment violates the basic structure doctrine? So this is one area where what happened in Indira Gandhi's case which came subsequently out of that election dispute and the 42nd Constitutional amendment, it was such a abuse of the parliamentary power and it was struck down and the Keshavananda judgment became acceptable. I mean, today it is too late to question the wisdom of the judgment. The doctrine imposes a restriction on the power of the majority and in that sense it's a counter-majoritarian check on democracy in the interest of democracy. That power has made the Supreme Court the most powerful court in the world. Secondly, it also made it a political institution because the ultimate determination of the basic structure was bound to be a political judgment. In 1975, an Emergency was imposed in the country following PM Indira Gandhi's disqualification in her election case. Mr. Soli Sorabjee insists that he always calls it a holy emergency. Many politicians, journalists and social activists were arrested under the maintenance of the Security Act, i.e. MISA was challenged but they were made with the government's plea that Article 21 was the sole repository of liberty and that, as a right to move for enforcement of that right, has been suspended by order of June 25, 1975 petitions were liable to be dismissed at the threshold. This objection had been overruled by as many as nine High Courts who displayed remarkable and robust independence in upholding the fundamental freedoms of the citizens. The appeals against this order were heard by a five-judge bench of the Supreme Court in ADM Jabalpur v Shivakant Shukla, and the majority held that the effect of presidential orders suspending Article 21 is that the detainee will have no right to challenge the detention in the court. Mr. Niren De, the then Attorney General, argued that even if a person is shot dead, there is no remedy - I mean, the right is suspended. Justice H R Khanna showed great courage in negating this totalitarian claim by the government. He held that Article 21 could not be suspended as the sole repository of the right to life and personal liberty and that such right could not be taken away under any circumstances without the authority of law in a society governed by rule of law. If two constructions of presidential order are possible, the court should lean in favour of adopting such construction as would make the provisions of the municipal law, i.e. the constitutional law, to be in harmony with the international law or treaty obligation. He referred to Articles Eight and Nine of the Universal Declaration of Human Rights. Article Eight says: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by the law". Article Nine states that no one shall be directed or subjected to arbitrary arrest, detention or exile. Relying on these provisions, Justice Khanna finally concluded in favour of citizens. J Khanna paid the penalty for his dissent. He was passed over for the post of Chief Justice of India although he was the senior, most-serving judge.
It took 21 months and people's simmering anger for the state of Emergency to abate. The Emergency period was actually India's second freedom struggle. The similar experience of the Emergency seems to have contributed to this metamorphosis of the Supreme Court in 1977. Dr. Satyaranjan Sathe said that the court must have realised that in Indian democracy, high public esteem alone would enable the court to withstand the pressure of a hegemonic executive. Abandoning its hitherto deferential attitude towards the executive, the court adopted the role of a social auditor. In its new role, the court recognised the rights of the poor and downtrodden people in India and expanded its reach to cover their interests. The groundbreaking Supreme Court judgment in Maneka Gandhi was the point of transformation. In one of its earliest cases, in A K Gopalan, the Supreme Court had taken a very narrow view of Article 21 as merely emphasising a facet of the Dicean concept of the rule of law that no one can be deprived of his/her personal liberty by executive action unsupported by law. This was a protection against executive action which had no authority of law. So, long as there was a law which provided some sort of procedure, it was enough to deprive a person of his liberty. In other words, the court interpreted law in Article 21 like any other state-made law and not an abstract principle of natural justice. The court treated each of the fundamental rights as separate and distinct from each other. On this basis, it was held that when the requirements of the article dealing with a particular matter is satisfied, then you cannot look to the other articles. So there is not open to complaint the infringement of some other article. Now, in Maneka the court, in complete departure from its earlier view, held that Article 21 affords protection not only against executive action, but also against legislation and that no law can deprive a person of his personal liberty unless it prescribes a procedure that is reasonable, fair and just. It would be for the court to determine whether the procedure is reasonable, fair and just and if it is not, the court will strike down the law. Thus, Article 21 assumed a new dimension and the court introduced procedural due process in Article 21 by judicial construction. The court held that, of course it was already laid down in the bank nationalisation case, that the fundamental rights weave together a pattern of human rights guarantees and they are not mutually exclusive and distinct. On this line of reasoning, the court held that any act that violated Article 21 must meet the additional test of anti – arbitrariness set out in the Equality Clause in Article 14 and the reasonableness of Article 19. Now Article 14, as it was interpreted originally, it was considered to be concerned more with the classification principle. In Maneka, the court reiterated what was held in A P Raiyappa v. State of TN, that this is primarily a guarantee against arbitrariness in state action and the doctrine of classification was evolved only as a subsidiary rule for testing and determining whether a particular state action was arbitrary or not. I would like to quote these just two to three sentences from Justice Bhagwati's judgment which really crystallize the role of Article 14. He said equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinal limits. Where an act is arbitrary, it is unequal both according to political logic, constitutional law and is therefore violative of Article 14. Then came the Francis Mullins case and this was really a turning point in interpretation. The word "life" in Article 21 of the Constitution in Mullins, J Bhagwati again held that life does not mean mere physical or animal existence. It also includes the use of every limb and faculty through which life is enjoyed and also encompasses within its scope the right to live with basic human dignity and all that goes along with it namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head. This is how the dynamics were changed with the interpretation of Article 21. This broad interpretation of the right to life really paved the way for the various socio – economic rights which were inserted in Part Four to be given full effect. The initial view of the Supreme Court was that fundamental rights are superior to the Part Four, i.e. directive principles because directive principles are not enforceable. Now after this deviation, ultimately the court held that they are not superior to the directive principles on account of the latter being non-justifiable. Rather, fundamental rights and directive principles are complimentary and the former are a means to achieve the goals indicated in the latter. The issue was put beyond any controversy in Minerva Mills Ltd. case where the courts held that harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. So, thus widening the horizon of Article 21, the court read into it the right to health, livelihood, compulsory education up to the age of 14 years, unpolluted environment, shelter, free drinking water, privacy, legal aid, speedy trial various rights of under trials, convicts and prisoners. In the majority of these cases, the court relied on the directive principles contained in Part Four.
Now another important development of the 1970's was the emergence of PIL or "social action litigation," as Professor Baxi prefers to call it. He says that the PIL is a nomenclature given by the Americanised Indians, but I'm just using it only for the sake of convenience because that is more commonly used. What happened is the Supreme Court found that large numbers of the population were denied access to courts and were unable to approach the court on account of widespread poverty, bonded labour, social restrictions and illiteracy. I will just read that important passage in S P Gupta's case where this locus standi was done away with in the public law. The court said where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public can maintain an action for an appropriate direction, order, or writ.
What happened thereafter is history now. In one stroke the court had extended the range of people with effective access to justice and the variety of issues that the court could adjudicate. This flexibility of the PIL procedure can be best illustrated by what is termed as epistolary jurisdiction. Taking a cue from an American court's decision in Gideon v. Wainwright, where a postcard of a prisoner was treated as a petition by the U.S. Supreme Court, the court in S P Gupta's case held that public-spirited persons can move the court even by writing a letter. The court has accepted letters and telegrams as petitions and many of the PILs, as a few filed by Professor Baxi, commence with the petitioners sending letters to the Supreme Court. And the other important aspect is, which was really developed as a departure from the procedural rules extending to the form and manner of filing a writ petition, is the appointment of commissioners for carrying out investigation, giving the report to the court and the appointment of lawyers as amicus curiae are all wonderful developments which began in 1977. There is a very long list of the cases which are decided by the Supreme Court in PILs. I would not like to deal with all, I will just give you two or three judgments. According to me, Rudul Shah v. State of Bihar is one of the most important judgments in which the court acknowledged the right of a citizen to compensation from the state for violation of his human rights. There, the defence was that India has ratified the ICCPR, but with a reservation about Clause Nine of the covenant, which provided for compensation. Justice Chandrachud dealt with this particular argument and finally came to the conclusion that if the apex court has no power to award compensation, then the whole scheme of the Constitution would be frustrated. Then, in D K Basu the court linked custodial torture to the defacing of all humanity.
The other judgment which I would like to mention is Olga Tellis v. Bombay Municipal Corporation. Professor Baxi said that it is an almost angelic enunciation of the right to livelihood. I mean what happened at that time - I was in college - I still remember, Antule's government decided to clear all the pavement dwellers and not only to remove them from there, but also to deport them to their respective places. They came from all over - mainly from Maharashtra and maybe some other parts of the country and the argument of the petitioner was that pavements served as their home- cum- workplace and their eviction from the public land would mean a loss of their means of livelihood and life itself. Interestingly the court responded to this petition very sympathetically. For four years all the evictions were stayed. Originally, the stay was granted by justice Lenten in the monsoon when the evictions started. The court reasoned that, although the state could not be compelled to provide work to all its citizens, depriving a person of his means of livelihood was tantamount to depriving him of his right to life. The court said, and I am quoting J Chandrachud's words: "Any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred by Article 21". On this basis, interim stays were granted to the evictions in those times, but then the situation changed, as Lawrence mentioned, about these bulldozers coming to the slums. The slum dwellers are not even in a position to retain the documents on which they can claim some sort of right of relocation. So this was a great development for socio- economic rights. This was really the beginning, I would say, by the series of judgments which really brought the Part Four provisions in while reading Part Three. The other area which is now, too, established is Subhash Kumar and the AP pollution board, where the court held that the right to pollution-free water and air are fundamental rights. Then, the court considered the concept of sustainable development and within the rubric of sustainable development they developed the principles of polluter pays, the precautionary principle, and polluter pays principles. Now what is important is that this law is not really based upon only the reaction to the foreign law.
In the Oleum gas leak case, where a definite shift was made by the Supreme Court of India when faced with the cases of industrial disaster, now Ryland v. Fletcher lays down strict liability rule. There are some defences to this rule and one of the defences is that the rule applies only to non-natural use of land and that no liability would attach where the escape was due to an act of God, Act of a stranger, or that the victim contributed to the negligence or where there was statutory authorisation. So in a very big tragedy, if it is statutorily authorised or it is not unnatural use, perhaps there is no remedy for the citizens. Given the potential caused by industrial disasters in India, particularly with the magnitude of Bhopal gas disasters, now everyone is watching TV everyday and what happened in Bhopal is now well known. The Supreme Court held that enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the undertaken activity. The result of this judgment is that liability of the industrial undertaking is now absolute. This judgment came after the Bhopal tragedy.
And the last judgment which I would like to refer is Vishaka v. State of Rajasthan. Recently J Verma had an occasion to explain this case. He was the author of the judgment and the learned Chief Justice said that there was a legislative vacuum in this important human rights area and India had not only signed but ratified CEDAW so this was an international obligation. Therefore, the court created a legislation, really this is the only instance perhaps where a legislation was created by a judicial figure. That was a petition in a form of public interest class action filed by social activists and NGOs to prevent sexual harassment at the workplace. The case was followed by a brutal gang rape of a social worker while on duty. This happened in Rajasthan. The petitioners argued that while women suffer sexual harassment on a daily basis in the workplace, neither the executive nor the legislature took any appropriate action to protect women from such harm. Hence, it was incumbent upon the court to act. In a stunning move by any legal standard, the Supreme Court drafted the guidelines and norms relating to sexual harassment at the workplace and declared it to be the law of the land. In drafting the guidelines the Supreme Court turned to the obligations under CEDAW and this judgment was given in 2000. Ten years have gone, but the parliament has not enacted any law with respect to this particular human rights violation.
Much is said about the misuse of PILs. The criticism is that many PILs are motivated, they are publicity oriented, or that people are set up by some rival parties. I would like to divide the PIL in three phases. In the first phase, which began in the late 1970's and continued through the 1980's, the PIL cases were generally related to the rights of disadvantaged sections of societiey, such as child labour, bonded labour, prisoners, the mentally challenged, pavement dwellers and women. In the first phases, the PIL became an instrument of social transformation and revolution that the founding fathers had expected to achieve through the Constitution, so it was really social action litigation as said by Professor Baxi.
In the second phase of PIL that is 1990 onwards, in which the breadth of issues raised in PIL also expanded tremendously from the protection of the environment to corruption-free administration, the right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance and general accountability of the people. But, the second phase also brought a disturbing trend of the frivolous petitions which reached a very disturbing level in the third phase, which started after 2000. And from 2000 onwards, I don't see anything much in the PILs except corporate questions and development issues.
The new PIL which is being pursued in various courts almost undermines the very purpose for which the concept of the PIL was originally perceived by the judges like Justice Bhagwati and Justice Krishna Iyer. I can give you some examples. There is a PIL pending in the Supreme Court praying strict implementation of the Bombay Prevention of Beggaries Act. UOI and the Delhi government has filed an affidavit that they are making their best endeavour to round up the beggars and deport them to wherever they come from - from different places. I really do not know under what provision of law a person can be deported from the city of Delhi to some other place. If a person who is convicted of a very heinous offence, a fraudster, a trickster, a corrupt politician all can stay in Delhi but a person - a beggar, who begs for alms only for his survival - he cannot be in Delhi. We do not wish to see poverty, we do not wish to see them. This is a complete perversion of the PIL jurisdiction.
The second example which I would like to give is the construction in the Yamuna belt. There were thousands of people, jhuggies, in that area and they were all evicted on the premise that this is a violation of CRZ regulations, notification because they were in the river bed. Now you find the construction of the Games Village is coming up in the same area.
It is a very unfortunate turn of events for the PILs. Now the misuse of PILs cannot be denied. But, still I feel that the PIL has served three great purposes. One is curtailing state lawlessness. This is a most important purpose. Then, creating awareness amongst people and serving as a catalyst for legislative action, for instance, ultimately after Unnikrishnan, the Right to Education Bill came and there are many instances where the Parliament has acted in pursuance of the orders of the Supreme Court. I think the Supreme Court has correctly summarised the position in Pharmaceutical Corporation's case. What the Supreme Court said is in a society where freedom suffers from astrophy, an activism is essential for particular public justice, some risks have to be taken.
Now I come to the last leg of my presentation that is emergence of era of globalisation and liberalisation. Surya Deva, a writer, he's written extensively on globalisation and its effects, says that the globalisation as a concept is neither pro, nor anti human rights and could offer opportunities both for the promotion and the abridgement of human rights at the national level as well as internationally. I think he quotes Denning: "Globalisation is a morally neutral concept. In itself, it is neither good nor bad but, it may be motivated for good or bad reasons or less good or bad reasons. Globalisation has serious implications, both positive and negative." Now, several studies have been published and it has been shown that this vigorous promotion of markets has resulted in serious inroads into the socio-economic rights of the poor and vulnerable sections. Secondly, globalisation limits the powers of the state. Though the state, in principle, still possesses the power of regulation and intervention, the unavoidable fallout would be that states might not be able to take an activist position in fulfilling their human rights obligations. This diminishing role of states has really created a problem, not only for the state, but also for the courts in dealing with cases. Though writs have been issued in the past against private persons, with the definition of state instrumentality, it is becoming increasingly difficult to issue orders against these private corporations who are plainly performing public functions. The involvement of MNCs in human rights violations and generating environmental hazards has been well documented in Bhopal and there are several such human rights violations.
Now, I will just quote the Professor Henkin when he says, "Giant companies have become largely independent of states - of the states that created them, of the states in which they operate - some of them are replacing or at least jostling the state themselves in the state system." And the Supreme Court has now - I would just like to see my own assessment about the role of the court in the globalisation era - initially, I think, in cases like Vellore Citizens Welfare Forum, AP Pollution Control Board, Goa Foundation, the court attempted to strike a balance between the need for development and the protection of human rights. But in recent years, the court has been influenced by liberalisation and corporate business interests at the cost of human rights. Its attitude has been less sympathetic toward recognizing and protecting the rights of the impoverished and vulnerable sections of society, such as slum dwellers and people displaced by the construction of dams. The Bhopal settlement is one such good example.
In a case about slums, a former CJI (Chief Justice of India) made a statement. He equated the slum dwellers with pickpockets. Inspired by these observations of the then-CJI, a division bench of the Delhi High Court struck down the Delhi government's scheme for the relocation of slum dwellers on the ground that it serves no social purpose. The labour jurisprudence changed beyond recognition as a result of some judgments of the smaller benches taking a completely contrary view from earlier, larger benches of yesteryears. I may quote again, Professor Baxi, "The judicial activist generation of today is only too obliging in the process of dismantling labour right jurisprudence of yesteryear and too ready to espouse causes dear to the constituencies of new social movements. All this is consistent with the ideologies of globalisation and economic rationalisation."
I would like to quote one passage from the judgment in the State of Punjab v. Devans Modern Breweries. The learned judge in his judgment observed, "Socialism might have been a catchword from our history, it may be present in the preamble of our Constitution. However, due to the liberalisation policy adopted by the central government from the early nineties, this view that Indian society is essentially wedded to socialism is definitely withering away. So a state policy which is followed for a decade withers away the promise of the preamble of giving social justice to the citizens of India." In a recent judgment in Harjinder v. Punjab State Warehousing Corp., Justices G.S. Singhvi and A.K. Ganguly had to remind their brethren that the Constitution is wedded to social justice. The judges observed, and I would like to quote these observations, "Of late, there has been a visible shift in the court's approach in dealing with the cases involving the interpretation of social welfare legislation. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the Constitutional Courts are no longer sympathetic to the plight of industrial and unorganized workers. In a large number of cases like the present one, relief has been denied to the employees falling into the category of workmen who are illegally retrenched from service by creating violence and silence in the jurisprudence developed by this court in the decades." This is the comment by a division bench of the Supreme Court as recent as December 2010. In an earlier paragraph, the judges observed, "The concept of social justice drafted in the Constitution consists of diverse principles essential for the orderly growth and development of the personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is a genus of which social justice is a species. Social justice as a dynamic device to mitigate the suffering of the poor, weak, Dalits, tribals and deprived sections of society and to elevate them to the levels of equality to live a life of dignity of person." In other words, the aim of social justice is to attain a substantial degree of social, economic and political equality, which is a legitimate expectation of every section of society in a developing country like ours, which is full of unbridgeable and ever-widening gaps of inequality, status, and of opportunity, law is a catalyst to reach the ladder of justice.
In 2007, in the case of State of U.P. v. G.S. Bisht, collective tensions were expressed in the context of globalisation by two learned judges of the Supreme Court. The question was whether it was proper for the judiciary to issue directions to the government for setting up consumer courts in the state of U.P. Justice Markandey Katju opined that in the garb of affirmative action, or judicial activism, the court cannot amend the law as that could be a naked usurpation of legislative power. According to him, the directions are really an encroachment into the legislative and executive government. The trend shown by Justice Katju is consistent with the stance of the court in Balco Employees Unions case, Dharmapur Sugar Factory, the approach seems to be and I would like to articulate on that, this approach is based on widespread perceptions that the courts are constitutionally and institutionally ill-suited to adjudicating in politically sensitive disputes involving issues of resource allocation. But also closely related to a prevailing understanding in Western democracies, especially in the U.S., that by contrast with civil and political rights socio-economic rights, whether enshrined in international, national or domestic instruments, are ideological aspirations, or programmatic goals, dependant on resources for their satisfaction and therefore inherently ill-suited to the mechanisms and techniques developed by the court for enforcement of the civil and political rights. So an artificial distinction is made between civil and political rights on the one hand and socio-economic rights on the other hand. The civil and political rights are called negative rights which come into play as soon as they are enacted and the socio-economic rights are subject to the grace of the state and cannot be taken as a right. This is the U.S. Supreme Court's consistent view in the last two or three decades.
Now I want to place before you that even in Western democracies, including the U.K., where the constitution is unwritten, remedial devices, changes of rules of procedure or, say, the rules of standing, often develop by the courts themselves and have allowed complex, polycentric disputes relating to the environment, economic labour relations or to public health issues to be adjudicated under the rubric of public law or constitutional law. What Lord Steyn said about the court's reach in socio-economic matters where resource allocation issues are involved, and I quote his article, "Deference: A Tangled Story": "In common law adjudication it is an everyday occurrence for courts to consider, together with principled arguments, the balance sheet of policy advantages and disadvantages. It would be a matter of public disquiet if the courts did not do so. Of course, in striking the balance courts may arrive at a result unacceptable to Parliament. In such cases, Parliament can act with great speed to reverse the effect of the decision, but there is no need to create a legal principle requiring the courts to abstain from ruling on policy matters or resource allocation issues. Somebody must tell them that the world has now moved from the days of Professor Thayer and Justice Felix Frankfurter, who are quoted extensively in the Supreme Court judgments.
The justices should also take note of the cooperative dialogue which started in the South African Supreme Court. The South African constitution is more concrete, is more dynamic than the Indian constitution, but the scheme regarding socio-economic rights is, I would say, after the expansive interpretation by the Supreme Court of part 3 and part 4 is almost similar. Now, I will only quote two or three judgments in the government of the Republic of South Africa v. Grootbroom and Others the court declared that the national housing policy was inconsistent with the right in Section 26 of the constitution, which accorded access to adequate housing. In Minister of Health v. Treatment Action Campaign, the petitioner challenged the constitutionality of the state policy to limit the provision of Nevirapine, which is a drug to stop mother-to-child transmission of HIV. The minister was very adamant - he said that because of the funding position, this drug would be made available only to a few of the hospitals and not all. The court held this to be a breach of Section 26 and accordingly directed the state to remedy its program. The last judgment is in Khosa v. Minister of Social Development - again a very important judgment. The South African government took a stand that the scheme of social security is not applicable to permanent residents. Refugees would come from neighbouring African countries, but at the time, social security would apply only to the citizens and not the permanent residents. The constitutional court of South Africa has held that the exclusion of certain permanent residents from access to statutory social grants was inconsistent with the prohibition on unfair determination of Section 9 of the constitution, read together with the right to access to social assistance in Section 27.
Of course, the U.S. Supreme Court's stance is very clear. Some of the state constitutions make important provisions for socio-economic rights. For instance, at least in two states, the right to education is a fundamental right. Now you'd be surprised to know that the New York State Appellate Division, in March 2006, in Campaign for Fiscal Equity v. State of New York, specifically mandated the allocation of sufficient funds in the state budget to fulfill the education article of the New York state constitution. In Kansas, there is a series of cases called Montoy v. State, demanding a certain level of school funding throughout the state. So, the court compelled the legislature to make a budgetary provision to fulfill the right to education.
Finally, I quote (former Israeli Supreme Court judge) Justice Barak's view that human rights need protection in a democracy and the protection of human rights cannot be left to the legislature or the executive, which reflects the majority opinion that they require the protection of the judiciary. Professor Baxi reminds the judges that in the circumstance of economic globalisation that seeks to make the world safe for foreign investors, activist justices are expected to be more solicitous for the protection of civil and democratic human rights, rather than any other institution of the state.
I would like to close by quoting observations of Dr. Ambedkar in perhaps his last speech in the constitutional assembly where he prophetically warned that India was going to enter into a life of contradictions. In politics, we will have equality and in social and economic life, we'll have inequality. In politics, we'll be recognizing the principle of one man, one vote and one vote, one value. And in our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to lead this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove these contradictions at the earliest possible moment or else those who suffer from inequality will block the structure of political democracy which assembly has to labouriously build up. This is how he has concluded.
Thank you very much for giving me a very patient hearing and I will say just a few words lastly, before I take my seat. I must thank Arvind Narrain again for inviting me here and secondly, I read Professor Baxi's writings extensively, but I had no opportunity to interact with him until today. But, because of this invitation, I got a chance to meet him. Thank you.