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Concept of Judicial Activism with an example of PPP in India

Under the Indian Constitution, the State is under the prime responsibility to ensure justice, liberty, equality, and fraternity in the country. The state is under the obligation to protect the individuals' fundamental rights and implement the Directive Principles of State Policy. In order to restrain the State from escaping its responsibilities, the Indian Constitution has conferred inherent powers, of reviewing the State's action, on the courts. In this context, the Indian judiciary has been considered as the guardian and protector of the Indian Constitution

Considering its constitutional duty, the Indian judiciary has played an active role, whenever required, in protecting the individuals' fundamental rights against the State's unjust, unreasonable and unfair actions/inactions.

Black's Law Dictionary defines judicial activism as: a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.

Meaning Of Judicial Activism

At the outset, it has to be stated that there is no precise definition of judicial activism accepted by one and all. However, there is a widely accepted notion that it is related to problems and processes of the political development of a country. In other words, judicial activism deals with the political role played by the judiciary, like the other two branches of the State viz, the legislature and the executive.

An eminent Indian jurist defines judicial activism in the following words:

(Judicial) Activism[1] is that way of exercising judicial power which seeks fundamental re-codification of power relations among the dominant institutions of State, manned by members of the ruling classes. The same authority goes on to add that judicial activism is the use of judicial power to articulate and enforce counter-ideologies which when effective initiates significant re-codifications of power relations within the institutions of governance.

An analysis of the above attempt by Upendra Baxi to define judicial activism shows that activism of the judiciary pertains to the political role played by it, like the other two political branches. The justification for the judicial activism comes from the near collapse of responsible government and the pressures on the judiciary to step in aid which forced the judiciary to respond and to make political or policy-making judgments.

Various Theories Of Concept Of Judicial Activism

As far as the origin and evolution of judicial activism go, there are two theories[2] behind the whole concept. They are: (i) Theory of vacuum filling and (ii) Theory of Social Want.

Theory Of Vacuum Filling

The theory of vacuum filling states that a power vacuum is created in the governance system due to the inaction and laziness of any one organ. When such a vacuum is formed, it is against the good being of the nation and may cause disaster to the democratic set up of the country. Hence, nature does not permit this vacuum to continue and other organs of governance expand their horizons and take up this vacuum.

In this case, the vacuum is created by the inactivity, incompetence, disregard of law, negligence, corruption, utter indiscipline and lack of character among the two organs of governance viz. the legislature and the executive. Hence the remaining organ of the governance system i.e. the judiciary is left with no other alternative but to expand its horizons and fill up; the vacuums created by the executive and the legislature. Thus according to this theory, the so-called hyper-activism of the judiciary is a result of filling up of the vacuum or the void created by the non-activism of the legislature and the executive.

Theory Of Social Want

The Theory of Social Want states that judicial activism emerged due to the failure of the existing legislations to cope up with existing situations and problems in the country. When the existing legislations failed to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. The only way left to them within the framework of governance to achieve this end was to provide non-conventional interpretations to the existing legislations, so as to apply them for greater good.

Hence, the judicial activism has emerged. The supporters of this theory opine that ―judicial activism plays a vital role in bringing in the societal transformation. It is the judicial wing of the state that injects life into law and supplies the missing links in the legislation. Having been armed with the power of review, the judiciary comes to acquire the status of a catalyst on change.

Judicial activism and shift from locus standi to public interest litigation

Access to justice is a fundamental aspect of rule of law. If the justice is not accessible to all, establishment of the rule of law is not possible. The individuals fail to reach justice system due to various reasons including lack of basic necessities, illiteracy, poverty, discrimination, privacy, poor infrastructure of the justice system, etc. The Supreme Court of India has recognised in many landmark judgments that access to justice is a fundamental right.

Indian Judiciary has played an active role in ensuring access to justice for the indigent persons, members belonging to socially and educationally backward classes, victims of human trafficking or victims of beggar, transgender, etc. Since Independence, the Courts in India have been adopting innovative ways for redressing the grievances of the disadvantaged persons. In many cases, the Supreme Court exercised its epistolary jurisdiction and took suo motto actions on mere postal letters disclosing the human rights violations in society. The court entertains the petitions which are being filed by the public spirited persons in the public interest. By doing so, the superior courts have liberated themselves from the shackles of the principle of locus standi and given the birth to the Public interest litigation in India. The shift from locus standi to public interest litigation made the judicial process more participatory and democratic.

S.P. Sathe[3] says: The traditional paradigm of judicial process meant for private law adjudication had to be replaced by a new paradigm that was polycentric and even legislative. While under the traditional paradigm, a judicial decision was binding on the parties (res judicata) and was binding in personam, the judicial decision under public interest litigation bound not only the parties to the litigation but all those similarly situated. The Supreme Court in People's Union for Democratic Rights v. Union of India[4] held that public interest litigation is different from the traditional adversarial justice system. The court said that public interest litigation is intended to promote public interest. Public interest litigation has been invented to bring justice to poor and socially or economically disadvantaged sections of the society.

The violations of constitutional or legal rights of such large number of persons should not go unnoticed. The Supreme Court in Bandhua Mukti Morcha v. Union of India[5] has justified the public interest litigation on the basis of vast areas in our population of illiteracy and poverty, of social and economic backwardness, and of an insufficient awareness and appreciation of individual and collective rights. One of the landmark cases relating to the public interest litigation was Hussainara Khatoon (I) v. State of Bihar[6].

A series of articles exposing the plight of under trial prisoners in the State of Bihar was published in a prominent newspaper. Many of the under trial prisoners had already served the maximum sentence without even being charged for the offence. A writ petition drawing the Court's attention to the issue was filed by an advocate. While accepting it as public interest involved, the Supreme Court held that right to speedy trial is a fundamental right under Article 21 of the Indian Constitution[7]. The court directed the State to provide free legal facilities to the under trials so that they could get bail or final release.

In Municipal Council, Ratlam v. Vardichand[8], the Court admitted the writ petition filed by a group of citizens who sought directions against the local Municipal Council for removal of open drains. The Court said that if the centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men. Similarly, a petition seeking court's directions for protecting the lives of the people who made use of the water flowing in the river Ganga, was accepted as public interest litigation by the Supreme Court of India in the case of M.C Mehta v. Union of India[9].

In this case, the court directed the local bodies to take effective measures to prevent pollution of the water in the river Ganga. Explaining the significance of public interest litigation, the court observed that: It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go un-redressed and justice is done to him.

However, the public interest litigation should not be abused by anyone. It cannot be allowed to be used for creating nuisance or for obstructing administration of justice. Recent legislations enacted through judicial activism Judicial activism has done a great service to society which can be inferred through following decisions:

Judicial activism and Public private partnership
Public private partnership

What is PPP and its importance at the present stage of development?

The Department of Economic Affairs of the Ministry of Finance of the Government of India has defined PPP[10] in the following terms: PPP is an arrangement between a government/statutory entity/government-owned entity on one side and a private sector entity on the other, for the provision of public assets and/ or public services, through investments being made and/ or management being undertaken by the private sector entity, for a specified period of time, where there is well-defined allocation of risk between the private sector and the public entity and the private entity receives performance-linked payments that conform to specified and predetermined performance standards, measurable by the public entity or its representative.

From the above definition it follows that PPP is a device or a vehicle to mobilize investment from the private sector for development purposes and is mutually profitable to both the parties. It is a hugely popular investment employed by developing and developed countries though the legal arrangement may vary from country to country and in different sectors within the same country. No wonder, at the present stage of massive infrastructure development undertaken in India, PPP is an inevitable tool for efficient and cost effective implementation of projects across all sectors of the economy.

Constitutionality of PPP:

The economic crisis faced by India in 1990�91 provided an opportunity for unshackling the economy by de-licensing a number of sectors. This led to the opening up of the infrastructure sectors including power and telecommunication to enhanced private participation. Sectoral policies as well as those governing foreign investment were liberalised. Sector-specific developments were aimed at improving the policy climate for private investment.

The power sector has witnessed various phases of policy developments. The earliest phase, which began in the early 1990s, was aimed to improve the policy climate for private investment. In 1991, the government of India amended the Electricity Supply (Act) 1948[11] to allow the entry of private investors in power generation and distribution. Similarly, there is no need to describe the importance of airports in the national economy. However, considering the public utility nature of the air transport industry the government has also sought to retain a direct stake in the sector. As such the public private partnership model which exists in India seeks to combine the strengths of both these sectors.

The Constitution of India refers to civil aviation as a subject on the Central list, and the subject falls within the legislative competence of the Parliament. The Aircraft Rules, 1937, have been amended to allow airports to be owned by citizens of India or companies or corporations registered and having their principal place of business in India. While the public sector faces budgetary constraints and lacks required expertise, the private sector faces problems in acquiring land, obtaining environment and forest permits and other such clearances, securing approvals from local authorities and overcoming inordinate delays caused by the Central, State and local governmental authorities[12]. As Government contracts have strict procedural requirements, the initiation of PPP started at a very cautious note. Enron and BMIC provide important lessons for PPP in the country.

At Enron, the controversial Power Purchase contract for extremely expensive electricity was suspended by the Maharashtra Power Board, which nearly went bankrupt as a result of high power prices. As reported earlier, the deal was reached through shadowy, secret negotiations, and in violation of the Electricity Supply Act. Begun in 1992, the Dabhol power plant near India's financial capital of Bombay in Maharashtra state was to have gone online by 1997.

It was supposed to supply energy-hungry India with more than 2,000 megawatts of electricity. But endless disputes over prices and terms of the deal turned the venture into a symbol of what can go wrong in large-scale development projects when cultures collide. The first power project sponsored by the Enron Corporation at Dabhol in the State of Maharashtra ran into a series of hurdles, including renegotiation of the initial agreement, because of a change in the State Government.

It also faced several legal challenges in public interest litigation, including challenges of the validity of environmental clearances. Fortunately, these obstacles, including twenty-five court cases, have been overcome The first impression one gets about PPP is that this is very much a Government contract and hence the stipulations under Article 299[13] of the Constitution are mandatory.

As a contract between the Government and the Licensee [Concessionaire], it would be covered by the provisions of Art. 299 and 300 of the Constitution. Thus judicial review of Government contracts is determined by duty of courts in confiding itself to check the legality of:
  • Whether a decision-making authority exceeds its powers?
  • Whether the contract committed an error of law?
  • Whether the Contract committed a breach of rules of natural justice?
  • Whether the Government reached a decision which no reasonable Tribunal would have reached?
  • Whether there is abuse of powers?

Further, the courts have a held that the grounds upon which an administrative action in Government contract is subject to control by judicial review are as follows:
  1. Illegality: this means the decision-maker must understand correctly the law that regulates decision-making power and must give effect to it.
  2. Irrationality, namely, Wednesbury unreasonableness or
  3. Procedural impropriety

A Study of PPP in Infrastructure Sector:

An Infrastructure contracts deals with public works. Some of these public works may be divided according to the area and sector of operation[14]: They are:
  • Physical infrastructure [bridges, roads, highways, ports, airports
  • System infrastructure [electricity, pipeline]
  • Maintenance infrastructure [railway, Mass transport system. Waste management]
  • Commodities [natural gas, petroleum, water supply]
Private participation in public works relate to design, construction, operation, maintenance, renovation or up gradation. The importance of PPP in infrastructure project need not be over emphasized, considering that India is targeting a growth rate of nearly 10% per annum. Further, with practical difficulties in the country there is a considering acceptance that a welfaristic State with socialistic concerns can move competitively by balancing both the ideals of welfarism and socialism in building key infrastructure projects.

Judgement of the Supreme Court of India regarding a public-private partnership project for the development of an area of 14.3 hectares of land at Tehkhand in South Delhi, 29/06/2016

Judgement of the Supreme Court of India in the matter of Delhi Development Authority V. Kenneth Builders & Developers Ltd. & Others[15] regarding a public-private partnership project for the development of an area of 14.3 hectares of prime land at Tehkhand in South Delhi for the construction of 750 premium residential flats in a self contained community to be sold by private real estate development on free sale basis.

The appellant (Delhi Development Authority) is aggrieved by the judgment and order dated 30th July, 2010 passed by a Division Bench of the High Court of Delhi in W.P.(C) No. 10647 of 2009. The grievance of the DDA is that even though the High Court held that the project land was Residential as contended by the DDA, yet the High Court held that in the event construction activity thereon is not permitted by the Delhi Pollution Control Committee the developer (Kenneth Builders) would be entitled to a refund of the entire amount deposited with the DDA pursuant to the acceptance of the developer's bid in an auction, along with interest thereon.

The appeal filed by the DDA is dismissed. The DDA should now refund the deposit made by Kenneth Builders with interest at 6% per annum calculated from 11th September, 2006 till realization.

Judicial activism connotes the assertive role played by the judiciary to forced the other organs of government to discharged their assigned constitutional functions towards the people. It has held reinforcing the strength of democracy and reaffirms the faith of people in rule of law.

Judicial activism may have been force upon the judiciary by an insensitive and unresponsive administration that disregards the interest of the people and that the nation does not suffer because of the negligence on the part of the executive and legislature. Former Justice S. H. Kapadia said Parliament and executive had well-defined powers under the Constitution and these needed to be respected by the judiciary. Legality and legitimacy are important concepts and go hand in hand. If there is excess of judicial overreach, then the legitimacy of judgments will be obliterated, he warned.

However judicial activism may be a welcome measure on in a short run where it helps in maintaining the rule of law and allows one organ to sustain the administration of the country when other organs are not performing. If it is practiced for a long time it may dilute the theory of separation of power and the doctrine of checks and balances.

When Judges start thinking they can solve all the problems in society and start performing legislative and executive functions (because the legislature and executive have in their perception failed in their duties), all kinds of problems are bound to arise. Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor resources to solve major problems in society.

Also, such encroachment by the judiciary into the domain of the legislature or executive will almost invariably have a strong reaction from politicians and others. However at the end I would conclude by stating that judicial activism may be good for protecting the fundamental rights of the citizens and protecting their interest from the vicious bureaucrats and politicians but extreme activism will lead to overreach of judicial powers that may lead to a misuse of power by the judges leading to arbitrary decision making as well tyranny which may be against the rule of a democratic country and so to ensure that no arbitrariness takes place judicial review should be practices by the respected Judiciary within the purview of doctrine of separation of powers and checks and balances.

  1. Judicial Process and Precedent by A laxmikanth Fourth edition
  2. Evolution Of Judicial Activism In India By Ravi P Bhatia ,Journal of The Indian law Institute Vol. 45, No. 2 (April-June 2003), pp. 262-274
  3. S.P. Sathe, Judicial Activism in India (Sixth Indian Impression, OUP 2010) 17
  4. M.P Jain, Indian Constitution Law ( Eighth Edition 2019)
  5. Kutumbale, Vishakha & Telang, Vidya, PUBLIC PRIVATE PARTNERSHIPS IN INDIA (An Overview of Current Scenario). (2014).
  6. PPP Cell, Infrastructure Division, Department of Economic Affairs, Ministry of Finance Government of India, Guidelines for Post- Award Contract Management for PPP Concessions
  7. Klaus Felsinger, Asian Development Bank, Public-Private Partnership Handbook
  8. Bandhua Mukti Morcha v. Union of India � Page 7
  9. Delhi Development Authority V. Kenneth Builders & Developers Ltd. & Others -Page 12
  10. Hussainara Khatoon (I) v. State of Bihar. Page-8
  11. M.C Mehta v. Union of India � Page 8
  12. Municipal Council, Ratlam v. Vardichand,- Page 8
  13. People's Union for Democratic Rights v. Union of India - Page 7

Written By: Abhishek Roy, L.L.M - Jogesh Chandra Chaudhari Law College

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