LLM Notes: The Judiciary as Guardian: How Judicial Activism Protects Fundamental Rights in India"

 The Indian judiciary has played a pivotal role in safeguarding fundamental rights through judicial activism, a proactive approach where courts interpret the Constitution expansively to address governance gaps and societal inequities. This doctrine empowers courts to intervene when legislative or executive actions infringe upon constitutional rights, ensuring justice for marginalized groups and evolving rights in line with democratic values. Below is an analysis of this concept, supported by landmark cases:

The judiciary derives its authority from key constitutional provisions:

• : Guarantees the right to constitutional remedies, enabling direct appeals to the Supreme Court for enforcement of rights.

• : Empowers High Courts to issue writs for rights protection.

• : Allow the Supreme Court to pass orders for "complete justice" and grant special leave to appeal, respectively.

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Whether superior court can direct subordinate court to pass particular order on application of any party?

Second and more importantly was that the Single Judge grossly erred in giving direction to the Sessions Judge to consider the bail application of Respondent Nos. 2 and 3 and "allow" it on the "same day".

16. In our considered opinion, the High Court had no jurisdiction to direct the Sessions Judge to "allow" the application for grant of bail. Indeed, once such direction had been issued by the High Court then what was left for the Sessions Judge to decide except to follow the directions of the High Court and grant bail to Respondent Nos. 2 and 3. In other words, in compliance to the mandatory directions issued by the High Court, the Sessions Judge had no jurisdiction to reject the bail application but to allow it.

17. No superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court.

18. When an order is passed, it can be questioned by the aggrieved party in appeal or revision, as the case may be, to the superior Court. It is then for the Appellate/Revisionary Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionary jurisdiction. Even while remanding the case to the subordinate Court, the Superior Court cannot issue a direction to the subordinate Court to either "allow" the case or "reject" it. If any such directions are issued, it would amount to usurping the powers of that Court and would amount to interfering in the discretionary powers of the subordinate Court. Such order is, therefore, not legally sustainable.

19. It is the sole discretion of the Sessions Judge to find out while hearing the bail application as to whether any case on facts is made out for grant of bail by the Accused or not. If made out then to grant the bail and if not made out, to reject the bail. In either case, i.e., to grant or reject, the Sessions Judge has to apply his independent judicial mind and accordingly pass appropriate reasoned order keeping in view the facts involved in the case and the legal principles applicable for grant/rejection of the bail. In this case, the Single Judge failed to keep in his mind this legal principle.

20. It is for this reason, in our view, such directions were wholly uncalled for and should not have been given. This Court cannot countenance issuing of such direction by the High Court.

21. In our view, at best, the High Court could have made an observation to the effect that the Respondent Nos. 2 and 3 (Accused persons) are at liberty to approach the Sessions Judge for grant of bail and, if any application is filed, it would be decided by the Sessions Judge on its merits and in accordance with law expeditiously but not beyond it.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2178 of 2017 (Arising out of S.L.P. (Crl.) No. 8030 of 2017)

Decided On: 14.12.2017

 Madan Mohan Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2018) 12 SCC 30

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Whether higher Judiciary has duty to protect subordinate judicial officers?

 Duty of Higher Judiciary to protect subordinate judicial officers:

(a) In Ishwar Chand Jain v. High Court of Punjab and Haryana & Anr, AIR 1988 SC 1395, it was held:

“14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a, constitutional obligation to guide and protect, judicial officers. An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders …… no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for Rule of law…….. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants.”

(b) In Yoginath D. Bagde v. State of Maharashtra & Anr, AIR 1999 SC 3734, it was held:

“The Presiding Officers of the Court cannot act as fugitives.

They have also to face sometimes quarrelsome, unscrupulous and cantankerous litigants but they have to face them boldly without deviating from the right path. They are not expected to be overawed by such litigants or fall to their evil designs.”

(c) A subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure - contestants and lawyers breathing down his neck. If the fact that he renders a decision which is resented by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution.

“Judge bashing" has become a favourite pastime of some people. There is growing tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure an order which they desire. For functioning of democracy, an independent judiciary, to dispense justice without fear and favour is paramount. Judiciary should not be reduced to the position of flies in the hands of wanton boys. (Vide : L.D. Jaikwal v. State of U.P, AIR 1984 SC 1374; K.P. Tiwari v. State of Madhya Pradesh, AIR 1994 SC 1031; Haridas Das v. Smt. Usha Rani Banik & Ors., etc. AIR 2007 SC 2688; and In Re : Ajay Kumar Pandey, AIR 1998 SC 3299)

(d) The subordinate judiciary works in the supervision of the High Court and it faces problems at the hands of unscrupulous litigants and lawyers, and for them “Judge bashing” becomes a favourable pastime. In case the High Court does not protect the honest judicial officers, the survivor of the judicial system would itself be in danger.

Reportable

Supreme Court of India

Nirmala J. Jhala vs State Of Gujarat & Anr on 18 March, 2013

Bench: B.S. Chauhan, Fakkir Mohamed Kalifulla

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Supreme court;Writs will not lie against the Judiciary acting on its judicial side

If the submission of Mr. Shanti Bhushan is accepted that by simply
hearing a writ petition the Court becomes a party with same duties and
responsibilities as the State, then the rights which can be claimed only
against the State can also be claimed against all private parties because
judiciary has to hear and decide almost all cases. Such plea is required to
be noticed only for rejection otherwise all disputes against private persons
will have to be treated as a dispute against the State also, because it is
primary responsibility of the judiciary to hear and adjudicate all disputes.
The judicial forum will then loose its impartiality because petitioners, like in
the present case, will make a demand that court itself should act as the
State and deliver all reliefs in a dispute where the executive or the
legislature is not at all involved as a party. For the aforesaid reasons we find
no merit in the contention that while acting in judicial capacity the judiciary
acts as the State and hence it must, as a corollary, entertain a writ petition
against purely private parties only because the matter has been brought
before the court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NOS.3276-3278 OF 2013

Riju Prasad Sarma Vs State of Assam & Ors.

SHIVA KIRTI SINGH, J.
Dated;July 07, 2015.

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