CHAPTER II

A SURVEY OF LITERATURE

2.1. Judicial Activism and Human Rights

Before embarking upon a research project it is essential to review the literature on the same
subject. But in the case of the present study, only a few observations have been made by
Jurists on Judicial activism. However brief they may be, the present study as a pioneering
venture, attempts to record the same, for the sake of analytical convenience.
Justice R.C. Lahoti points out: As an independent judiciary, under the scheme of the
Constitution, the Court has played its role effectively in acting as a watchdog through judicial
reviews over the acts of the legislature and executive. The major contribution of the Supreme
Court has been to uphold the constitution by delineating the role of the three organs of the
State. When two organs of the State fail to perform their duties, the judiciary cannot remain a
mute spectator. While acting within the bounds of law, the Supreme Court has always risen to
the occasion as one of the guardians of the Constitution, criticism of Judicial activism
1
notwithstanding
Justice A.K. Sikri views that not only the judicial activism has activated the judiciary but has
activated the executive and legislature too. Several new legislations have appeared on the
scene after judiciarys efforts and directions. Judicial activism has unearthed several scams
and scandals (e.g. Hawala Scam, Fodder Scam, St. Kits Scam, Illegal Allotment of
Government Houses and Petrol Pumps, Fertilizer Scam etc). Hence, it has created an
environment of transparency and engendered a sense of accountability in public
2
functionaries .
Professor Mool Chand Sharma observes: Nowhere on the globe has the judiciary enjoyed
that much independence and credibility as in India. In fact exercising its independence and
the power of judicial review, the courts and in particular the Apex Court in
Justice R.C.Lahoti, A Conspectus of Judicial System, Nyaya Deep, Vol.VI, Issue1, Jan.2005,p.7
Justice A.K.Sikri, Human Rights and Indian Judiciary, Nyaya Deep, Vol. VII, Issue 4, Oct. 2006, p.83

15

India has not only turned down on number of occasions executive actions and legislative
enactments but has also indulged into judicial law-making and most notably and uniquely on
few occasions even in Constitution making ... The judiciary in India has not only influenced
national-policy making on some of major issues but has in many respects even guided the
national policy making agenda. In the process, it has come to be identified as a strong
institution dedicated to the Rule of Law, constitutionalism and defenders of civil liberties and
3
human rights
Justice K.G.Balakrishnan says that the Supreme Court has been the doyen of public interest
litigation. As a power regulator, the Supreme Court has two functions: it limits government
arbitrariness and power abuse; and it makes more rational and its policies more intelligent.
Supreme Court is the bulwark for maintenance of democracy and a bastion of Civil liberties.
It is a potential instrument of social justice to bring about equality in result. The argument
that the Supreme Court should maintain restraint fails to recognize the constant failures of
governance taking place at the hands of the other organs of State, and that it is the function of
the Court to check, balance and corrects any failure arising out of any other State organ... The
only function of the court is to protect the rights of the people, and all its actions are directed
to further this function. He adds that the Court serves as the whip hand of the people towards
4
any wrong done by the State. An independent judiciary is a crucial part of a structure that
protects on the basis of equality the rights of those who lack power in Majoritarian politics.
Justice Soli Sorabjee Points out that: Indignant critics forget that it is the
Executives failure to perform its duty and the notorious tardiness of legislatures that impels
judicial activism and provides motivation and legitimacy. When gross violations of human
rights are brought to its notice, the judiciary cannot procrastinate. It must respond.

Prof. Mool Chand Sharma, India at Cross Roads Role of Universities and Youth, Nyaya Deep, Vol. XI, Isue1,
Jan.2008, pp. 80-81.
Justice K.G.Balakrishnan, Relationship between the Executive, Legislature and Judiciary, Nyaya Deep, Vol. Ix,
Issue 2, Aprl 2008, p.10.

16

Justice Mukul Mudgal in his Awareness of Rights defines right as a claim recognized by
the society and enforced by the State and analyses the concept of rights in
Indian context covering a wide range of Right to dignity, Right to legal aid, Rights of an
arrested person, Right to education, Right to speedy trial, prison Justice, Right to livelihood,
Right to quality of life, Right to health, Right to Social security and Right against sexual
harassment of Women. He also deals with common man oblivious of right available to him
and offers suggestions for improving the level of legal literacy in India. He cites case laws
pertaining to the relevant rights.
Mukul Mudgal J. believes that Indian judiciary by resorting to a liberal and purposive
interpretation of the various Articles of the Constitution has widened the scope of rights
available to the common man. He feels that the rights mentioned above reflect the untiring
crusade of the Indian judiciary to make rights enshrined in the Constitution meaningful to the
teeming masses of India.
Justice J.S. Verma states that the recent trend of judicial activism developed because of the
seeming failure of other organs of the State to duly perform their function, requiring the
judicial process to activate them for public good. Judicial Activism is a delicate exercise
involving creatively. Great skill and dexterity is required for innovation. Judicial creativity is
needed to fill the void occasioned by any gap in the law or inaction of any other functionary,
and thereby, to implement the Rule of Law. He warns that judicial
Activism in its true form alone must be promoted and practiced. Judicial Activism is
legitimate and welcome but not judicial adhocism which may tend to degenerate to judicial
tyranny. This is the legitimate province of the judiciary in the constitutional scheme in a
democracy. He concludes with the view that the utility of the judicial process in protection
6
of human rights in India has been significant .
Dr.M.M.Mustazhar expresses the Human rights are inherent rights of individuals and to
human being can be deprived of these rights by acts of any ruler (State); they are
Justice Mukul Mudgal, Awareness of Rights, Nyaya Deep, Vol.VI, Issue 2, Apr.2005, pp.94-104.
Justice J.S.Verma, Protecting Human Rights through the Judicial Process, Second Justice M.Hidayatullah Memorial
Lecture, delivered on 21st December 2002 at Raipur, pp.1 -12.

17

inalienable. The vital issue of enforcing Human Rights is a paramount importance. The
judiciary has been a Zealous guardian of Human Rights. Indian judiciary by virtue of the
power vested in it under the constitution is the protector of the Human Rights of person. He
adds the historical background against which Article 21 has taken the present shape is a result
of Judicial Activism. Proponents of Judicial Activism, think that a powerful judiciary is
essentially necessary to protect the Human Rights of weaker sections of the society. Meneka
case opened up new dimensions and the Supreme Court pronounced a landmark judgment
that the procedure contemplated by Article 21 should be in conformity with the principles of
natural justice. A great transformation has come about in the judicial attitude towards the
protection of human rights of persons. This wider interpretation of Article 21 becomes the
starting point for the evolution of law relative to judicial intervention in Human Rights cases.
According to Mustazhar this famous judgment marks a watershed in the history of the
constitutional law of the country the Supreme Court for the first time took the view that
7
procedure under 21 has to include natural justice .
8

Justice A.S. Anand proclaims : Judicial Activism, when considered in proper perspective
may turn out to be really the process of development of the law to respond to the needs of the
society. Intervention into such areas is because of the peoples perception that judicial
intervention is perhaps the only feasible correctional remedy available. There is therefore no
reason to treat this exercise as an attempt by the judiciary to clutch at jurisdiction or to usurp
the function of any other organism of the State. He admits that
Judicial creativity (often being termed as Judicial Activism), as a means of evolving new
juristic principles for the development and growth of law, is an accepted and well
recognized role of the judiciary not only in this country but in almost all the common law
countries. The law must move with the times and the judiciary has forever remained alive to
this reality. He pleads that the Courts, must however, not shy away from discharging their
Constitutional obligations to protect and enforce human rights of the citizens and while acting
Dr.M.M. Mustazhar, New Dimensions of Emerging Human Rights, pp. 1-15.
Dr.Justice A.S.Anand, Protection of Human Rights Judicial obligation or Judicial Activism, Justice
N.D.Krishna Rao Memorial Lecuture, Practical Lawyer, (1997) 7SCC (Jour) 11.

18

within the bounds of law must always rise to the occasion as guardians of the constitution,
criticism of judicial activism notwithstanding.
Justice B.N.Srikrishna in his speech delivered at the Sesqui centenary celebrations of the
9
Government Law College, Mumbai, on 01.10.2005 , explores the that the Judge being
human, the social ambience in which he operates is likely to affect his judgment, but the
extent to which he disallows this to happen determines his mettle. He is critical of judicial
activism. This sort of result oriented jurisprudence requires embarrassing legal gymnastics
from judges. In his opinion activist judges have often ignored or side-stepped binding legal
precedents to arrive at preconceived results, which conform to their conception of justice.
However honest and bonafide this exercise its legal legitimacy is open to question. He feels
that what the framers of the Constitution consciously avoided i.e., due process of law, which
was the source of judicial activism in the United States Judicial activism in India has brought
it by the back door, i.e., procedure established by law, similar to Article 30 of the Japanese
Constitution of 1946. The Supreme Court should stoutly refuse the temptation to crown itself
with political throns. While listing out the undesirable consequences ensuing from judicial
activism, the justice observes that Judges now seem to want to engage themselves with
boundless enthusiasm in complex socio-economic issues raising myriads of facts, and
ideological issues, that cannot be adjudicated by judicially manageable standards. The nontraditional types of litigation in the form of public-interest litigation (PILs) are attempts to use
judges as social engineers. He reminds that the judicial system is currently unable to handle
ordinary litigation, as it faces a huge backlog of undecided cases. Judicial activism has
extended to the use of authorities with political overtone for deciding cases wholly
improper approach.
Justice Srikrishna says that a judge is not free to render justice as he thinks, but is required
to render justice according to law. Judges are meant to act as humble interpreters of law, not
pose as emperors who adjudicate on a whim. Hence, he concludes that it is
9. Justice B.N.Srikrishna, Skinning A Cat, Practical Lawyer, (2005) 8 SCC (3) 3. This lecture is a continuation of
the debate initiated through two articles published earier viz., M.Hidayatullah, highways and Bye-Lanes of
Justice, (1984) 2 SCC J-1 and Justice V.R.Krishna Iyer, Democracy of Judicial Remedies A Rejoinder to
Hidayatullah, (1984) 4 SCC J-43.

19

preferable to tread the highways of justice instead of resorting to the bye-lanes of activism in
the hope of expeditiously reaching the goal of justice. There are many ways of skinning a cat
one can do it quietly or can do it ostentatiously. In his view It is preferable to do judicial
skinning quietly and unostentatiously and in according with positive law.
Bikramaditya Ghosh and J.Parthasarathi discusses the Constitutional interpretation of
judiciary and stress that the role of judiciary in interpreting the Constitution is a paramount
importance and a key to the survival of democracy at given point of time. They view that the
concept of judicial activism depends on the proper role of Constitutional Court in a
democracy. They quoted Dr.B.R.Ambedkar, who defended the provisions of judicial review
as being necessary. According to Dr.Ambedkar, the provisions of judicial review, in particular
the writ jurisdiction that gave quick relief against the abridgement of fundamental rights,
constituted the heart of the constitution; the very soul of it. They expose that the constituent
Assembly had purposely rejected the expression due process of law, instead adopted a more
specific expression: procedure established by law. They further express that during the postemergency, consciously or unconsciously, the Court began moving in the direction of the
people. In relative terms, the Court became much more accessible and its doctrinal law more
people-oriented. They add that constitutional expressions are open textured and it is for the
reviewing court to develop nuances in the context of emerging situations. The Court reads the
Constitution not merely as a statute but as an organic law of the nation. The authors of the
article conclude that if constitutionalism is a superstructure, judicial activism has to be its
10
firm base.
11

Dr.Kamla Jain refers to instances of judicial activism displayed by the judges of the apex
Court as of high order with reference to the protection of human rights of the child. With the
help of some of the recent and important cases decided by the Supreme Court and some of the
High Courts, Dr.Jain has made an attempt to establish the view that the judiciary has been
very much active (particularly the Supreme Court of India) as a Champion of
Bikramaditya Ghosh & J.Parthasarathi, Judicial Activism: the Base of a Superstructure called
constitutionalism, pp.34-68.
Dr.Kamala jain, Judicial Activism, Central India Law Quarterly, vol. VIII:1. 1995, pp.87 98.

20

Human rights of children, by playing a vital role in securing for them and putting on solid
foundation several important basic rights including right not to be sent to the jail, right to be
tried by the judge who has special knowledge and training for dealing with cases against
children, right to free legal aid to poor and right to be defended by a legal practitioner of his
own choice, right to speedy trial, right to ball, right to education, welfare of child adopted to
foreign parents, etcetera. The apex court has been more active relating to juvenile justice
system. As regards the rights of the child, the courts issued various directives on many times,
the author notes that unfortunately these are not taken with due seriousness by the
government departments. Hence, the author suggests that judicial activism should necessarily
include judicial vigilance and monitoring as essential for getting judicial orders and decisions
implemented in true spirit.
12

Justice Y.K.Sabharwal in his Role of Judiciary in Good Governance said that the concept
of governance simply means the process of decision making and the process by which
decisions are implemented. The quality of governance depends, in a large measure, upon the
indulgence shown by subjects. In nutshell, Good Governance entails effective participation in
public policy making, the prevalence of the rule of law and an independent judiciary,
besides a system of institutional checks & balances through horizontal and vertical separation
of powers and effective oversight agencies.
Justice Y.K.Sabharwal Quoted the views evolved in UN Economic & Social commission for
Asia & the Pacific, which holds that Good Governance has 8 major characteristics: It is
participatory, consensus oriented, accountable, transparent, responsive, effective and efficient,
equitable and efficient and follows the rule of law. It assures that corruption is minimized, the
view of minorities are taken into account and that the voices of the most vulnerable in society
are heard in decision making. It is also responsive to the present and future needs of
society.
According to Sabharwal, the judicial system has an important role to play ultimately in
ensuring better public governance. There is no area where the judgments of Supreme Court
12 . Justice Y.K.Sabharwal, Role of Judiciary in Good Governance, pp. 1-12.

21

have not played a significant contribution in the governance good governance whether it
be environment, human rights, gender justice, education, minorities, police reforms,
elections and limits on constituent powers of parliament to amend the constitution. Indian
judiciary has been pro-active and has scrupulously and overzealously guarded the rights
fundamental for human existence. The scope of right to life has been enlarged so as to read
within its compass the right to live with dignity, right to healthy environment, right to human
condition of work, right to education, right to shelter and social security, right to know, right
to adequate nutrition and clothing and so on. He further observed: The Supreme Court has,
over the years, elaborated the scope of fundamental rights consistently, strenuously opposing
intrusions into them by agents of the State, thereby upholding the rights and dignity of
individual, in true spirit of good governance.
Justice Sabharwal concluded that it is indeed a matter of great satisfaction that the two other
chief organs of the State in India have always respected the jurisdiction of judiciary to subject
every state action to judicial review and therefore, have either abided by the decisions.
Judiciary has, thus, played a crucial role in development and evolution of society in general
and in ensuring good governance by those holding reigns of power in particular.
13

How onerous the exercise of judicial activism was aptly explained by Justice M.N.Rao:
Judicial creativity even when it takes the form of judicial activism should not result in
rewriting of the Constitution or any legislative enactments. Reconciliation of the permanent
values embodied in the Constitution with the transitional and changing requirements of the
society must not result in undermining the integrity of the Constitution. Any attempt leading
to such a consequence would destroy the very structure of the constitutional institutions. He
concluded that judicial activism characterized by moderation and self-restraint is bound to
restore the faith of the people in the efficiency of the democratic institutions which alone, in
turn, will activate the executive and the legislature to function effectively under the vigilant
eye of the judiciary as ordained by the Constitution.

13. Justice M.N.Rao, Judicial Activism, Practical Lawyer, (1997) 8 SCC (Jour) 1

22

14

Justice V.G.Palshikar wrote: Judicial Activism has its own limits. No court can, by taking
resort to Judicial Activism, take upon itself, functions squarely enjoyed upon some other
institution by the Constitution. Investigative power cannot be assumed by any court and it is
in this regard that the question regarding limitations on the powers of Judicial Activism
requires close scrutiny.
15

Kavita Jitani; viewed that the concept of judicial activism and public interest litigation are
connected. Public interest litigation (PIL) has become citizens favourite tool to fight
inefficient and unresponsive governments. To its credit, at least in some cases, the Supreme
Court judgments have advanced citizen rights and strengthened Constitutional protections for
the common man. The changing stance of the judiciary has often been termed as activism on
the part of the judiciary of judicial activism. Viewed from various perspectives this
metamorphosis, in the functioning of the judiciary has invited varied reactions ranging from
exuberance to caution to pessimism.
16

Radha Rajan spoke: Judicial activism has become pronounced today because the executive
has failed in its service of the people it claims to represent. It has failed because of corruption
and it has failed because of incompetence. So, judicial activism is good.
17

Anil Divan wrote: Judicial activism earned a human face in India by liberalizing access to
justice and giving relief to disadvantaged groups and the have nots. The great contribution
of judicial activism in India has been to provide a safety valve in a democracy and a hope that
justice is not beyond reach. Judicial activism has come to stay in India and will prosper as
long as judiciary is respected. Judicial activism has added much needed oxygen to a gigantic
democratic experiment in India by the alchemy of judico photosynthesis.

Justice V.G.Palshikar, Judicial Activism, The Law Review, Government Law College, Vol. 7.p.60
Kavitha Jitani, Democracy and Judicial Imperialism, Ind law News, May 24, 2009.
Radha Rajan, Judicial Activism, VIGIL Public Opinion Forum, 2009
Anil Divan, Judicial Activism and Democracy, THE HINDU Opinion Leader page Article, April. 02, 2007.

23

18

After discussing the ongoing debate on judicial activism, Pritha Jha concluded that it is a
known fact that judicial activism has given some very good case laws, even led to
revolutionary changes in society, but its consistency needs to be questioned.
Wikipedia the free encyclopedia while discussing the different facets of judicial activism,
highlights on the international dimensions with particular reference to U.S. experience by
citing U.S. Supreme Court cases along with a catalogue of books as sources for reference on
the topic of judicial activism.
19

ICFAI University in its overview on Judicial Activism: Need for Reforms distinguishes
between judicial activism and judicial restraint. The activist will look for justice, not for law;
while doing so he may overlook in the intentions of the legislature in that particular aspect.
While interpreting constitution the activist judge views it as a living, dynamic document,
meant to meet the needs of the people and provide a contemporary meaning to the
fundamental principles addressed in the constitution. The restrained jurist would try to divine
the meaning of the framers.
20

R.R.Vadodaria analyses the constitutional crises as a source of judicial activism. The real
judicial activism starts at the time of constitutional crises and then begins the true test of
judiciary. After the commencement of Indian Constitution, it was Allahabad High Court
which stood firm and then great judge, Justice Sinha convicted Prime Minister Indira Gandhi
for corrupt practices at election. Again it is the same High Court which ordered reinstallation
of Kalyan Singhs Govt. These are the examples of true and real judicial activism where the
principle of rule of law is established that how so high you may be, the law is above your.
Thus the primary source of judicial activism lies in the principle of rule of law. The author
feels that no doubt, the judiciary is the main source and generator of judicial activism. The
judiciary and judgments should be more society oriented and sensitive to the people.
Pritha Jaha, Judicial Activism at its best and perhaps, its worst,
http://www.goforthelaw.com/articles/formulawstu/article 27.htm X
Icfai Law publications: http://www.amicum.iupindia.org/judicial -ovwasp.
R.R.Vadodara, Constitutional Crises and Judicial Activism, Indian Bar Review, vol. 27 (1) 2000, pp.6976.

24

21

Justice A.D.Mane observes that judicial activism is as old as Abraham Lincoin. He outlines
the Constitutional vision and judicial philosophy of Dr.B.R.Ambedkar. He also discusses the
role of the Supreme Court in enforcement of fundamental rights. He quotes the views of
Justice Dr.A.S.Anand while delivering the Justice Krishna Rao Memorial lecture delivered
at the National Law School at Bangalore: The courts must not shy away from discharging
their constitutional obligations to protect and enforce human rights. Dr. Anand further added:
while acting within the bound of law they must always rise to the occasion as guardians of
the constitution, criticism of judicial activism notwithstanding. At the same time, Justice
Anand has cautioned that judge should not ignore the limits of law.
22

Abhaykumar Dilip Ostwal states that the three organs of the democratic set up the
legislative, executive and the judicial organizations should appreciate mutual respect and
the Court should decline to entertain any matter that is within the domain of the other organs
of the State. Further the author writes that the people of India look upon the Supreme Court as
an instrument of social justice and guarantor of the great ideals enshrined in the constitution.
It is argued that while separation of powers is necessary to preserve liberty and democracy, a
complete and absolute separation of powers is unworkable and leads to tyranny. And that
what is being attempted in modern democracies is a mixed government, a system of
overlapping, intermingling powers, and a system of checks and balances.
23

Justice Dr.S.R.Nayak opines judicial activism has become judicial tyranny when the court
in its new activist role has transgressed its legitimate role assigned to it under the constitution.
Judicial activism seems to be judicial tyranny when the judicial process was abused or
misused by unscrupulous persons. He thinks that the court must maintain the social balance
by interfering where necessary for the sake of justice and refuse to interfere where it is
against the social interest and public good.

Justice A.D.Mane, Judicial Activism A Theory of Judicial Philosophy.

Abhaykumar Dilip ostwal, Judicial Activism versus Doctrine of Separation of Powers, http://legal-articlesdevto.com X
Justice S.R.Nayak, Judicial Activism or Judicial Tyranny, ITAT online.org
http://www.itatonline.org/articles-new/index.php April. 2009, Reproduced from AIFTP Journal, Oct. 2008X

25

Justice Nayak quotes Jawaharlar Nehru, Prime Minister, who was present at the inauguration
th
of the Supreme Court of India on 28 January, 1950, who had cautioned as: No

Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament
representing the will of the entire community. If we go wrong here and there it can point out,
but in the ultimate analysis, where the future of the community is concerned, no judiciary can
come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of
Parliament. But it is obvious that no court no system of judiciary can function in the nature of
Third House, as a kind of Third House of correction. So it is important that with this
limitation judiciary should function.
Alladi Krishnaswami Ayyar and T.T.Krishnamachari had said that the provisions of the
constitution do not make the judiciary an imperirum in imperio, as quoted by Justice Nayak
in support of his argument on limitations of judicial activism.
24

Abhaykumar Dilip Ostwal submitted that judicial activism in India is justified to the
extent it safeguarded basic human rights of citizens and gave a new hope to the downtrodden
that judiciary is one of the organs of the State to turn to, when there is failure on the part of
other organs to perform their duties. It is the creativity of the Supreme Court of India that has
preserved the basic human rights of the citizens. As a guardian and watchdog of fundamental
rights it is within the mandate of the court to infuse a new life in Article 21 and broaden the
scope of right to life and personal liberty so as to make it meaningful and cherish it for the
generation to come.
25

Professor Ranbir Singh of Kurukshetra University after examining the positive role
played by the Supreme Court of India in defending the constitution and dealing with the
issues of human rights and ecological concerns, cautions that the Supreme Court will
continue to transgress into the realm of the executive and Parliament till the health of the
executive is not restored by the formation of stable single party governments and till the
health of Parliament is restored through the revival of the two-party system, deregionalisation
Abhykumar Dilip Ostwal, Judicial Activism and Self-Restraint, Legal Articles Directory, 9th Jan 2009
http://legal-articles.deysot.com/criminal-law.
Ranbir Singh, Perils of Judicial Activism, Mainstream, Vol. XLVI, No.13, 16 March 2008.

26

and decriminalization of Indian politics. Unless that happens, the Supreme Court will
continue to fill up that political vacuum and shall continue to resort to judicial activism and
overreach. It may appear as a healthy development at present. But it is not desirable in the
long run.
26

Justice Y.K.Sabharwal in his interview to the Hindu observes wherever there is lack of
implementation of a law, of course the judiciary cannot fold its hands; its the duty of the
court to enforce the law. Judicial activism or judicial terrorism is a misnomer. Even after
court invalidates an enactment, it is well within the province of parliament to pass a fresh law
removing the illegality.
27

Professor Ramesh Thakur of the University of Waterloo, points out that the functions of
rule-making, rule-enforcement and rule-interpretation are separated into the three institutions
of the legislature, the executive and the judiciary which operate in demarcated jurisdictions.
In recent decades, Indian politics has suffered from two unfortunate impulses: The first is to
try to solve a problem of implementation with a fresh piece of legislation: the equation just
does not compute; A second pathology of Indian politics is to transfer to the judicial arena
problems and conflicts that require resolution in the political arena. The author defines
judicial romanticism as the habit of mind that always looks to courts as a solution to any
problem. The romanticists discount political and diplomatic alternatives. He concludes that
for the rule of law to prevail, the judiciary must be seen to be universal, impartial and
impersonal but also restrained.
28

Abhinandan Mishra writes that three arms of governance in a democracy are independent
and yet dependent on each other. If anyone of them is given even a subtle hint of having a
free run then it will create chaos and anarchy. He views that in many cases the courts
intervened only when the executive failed to deliver goods to the common man, be it the ban
on diesel run buses or commercialization of residential flats in the capital.
Justice Y.K.Sabharwal, Judicial Activism is a Misnomer, Interview to the Hindu, Oct. 21, 2005 (Reported by
J.Venkatesan)
Ramesh Thakur, Judicial Activism, Romanticism & overreach, The Hindu opinion, March 04.2008
Abhinandan Mishra, Is Judicial Activism itself on trial?, Merinews, The Citizens Mouthpiece, 2009
http://www.merinews.com/catFull.jsp?

27

29

Ram Kumar Mishra points out that judicial activism is a valuable weapon which can do a
great to society, if properly used but it may harm the society if recklessly used. The power of
the judicature, properly used within own limit, will strengthen democracy. It may be said that
the Supreme Court is the guardian of Constitution and the final interpreter of the Constitution.
30

Tehmtan R.Andhyarujina while speaking on judicial activism not judicial adventurism

views that judicial activism is equated with public interest litigation mainly because it is a
most convenient vehicle for bringing public grievances before courts and because the courts
orders in PIL are far-reaching and sometimes sensational. The author feels that there is much
scope for creative judicial activism in the interpretative functions of judges as in Maneka
Gandhi Case in 1978 which is a kind of creative judicial activism. No question of the court
breaching the separation of powers can arise, as it carries out its constitutional function of
protecting the basic rights of individual in such cases. However, over the years the true object
of PIL as originally conceived has been lost sight of, and it believed to be general jurisdiction
for correcting government action or inaction, regardless of constraints of established
principles of judicial review. The author cites the example of a bench of two judges of the
31
Supreme Court in Aravali Gold Club Case recently has brought misplaced judicial activism
into focus, but in the process it did not advert to the permissible scope of judicial intervention.
32

Kamaluddin Khan explains the concepts of public interest litigation and Judicial Activism
and examines the scope for activism as essential for participative public justice by citing land
mark decision by Supreme Court against the petitions of public interest covering
Ratlam Municipality case, Oleum Gas Leak Case, Ganga Pollution Case, etc.,

Ram Kumar Mishra, Judicial Activism A Pilgrim of Judiciary, AIR Journal 2011 17.
Tehmtan R.Andhyarujna, Judicial Activism in Public interest Litigation, Halsburys Law Monthly, Aug.
2008.
2008 1 SCC 683
Kamaluddin Khan, Public Interest Litigation and Judicial Activism,
http://www.twocircles.net/legal_circle/public-interest-litigatin_and_judicial_activism...X

28

The Supreme Court played crucial role in formulating several principles in public interest
litigation cases. For instance, the principle of absolute liability was propounded in
Oleum Gas Leak case, Public Trust Doctrine in Kamalnath case, etc.,
33

Justice S.R.Nayak admits that the Supreme Court has over the years, it its positive activist
role explained and elaborated the scope and dimensions of Fundamental Rights, particularly
the right to life guaranteed under Article 21 of the Constitution. The Court has laid down
certain directives for law enforcement. The justice pleads that it is the duty of the judiciary to
come to the rescue of the underprivileged to reap their benefits and assert their rights and help
them realize economic and social entitlements conferred upon them. In the context of the
increased violations of human rights, the courts and the Judges are expected to evince activist
role to protect and promote human rights of citizens.
34

Dr.Anjana Maitra furnishes a brief historical sketch of four specific trajectories of human
rights in Indian context, viz., 1.Civil and political rights, 2.Rights of the marginalized,
3.Economic, social and cultural rights and 4.Right to transparent and accountable governance.
He suggests that if human rights are to have real meaning, they must be linked to public
participation. Rights become real only when people begin to realize their full potential as
human beings and assert their rights in the private and public sphere.
35

B.S.Tyagi in his Judicial Activism in India presents a critical study of judiciarys new role
in the present situation of litigation explosion which shows peoples unflinching faith in the
judiciary. The new role of judiciary riding a high horse has been criticized as judicial
adventurism. This book discusses the issue of peoples judiciary attending the miseries of
common man.
36

Professor S.P.Sathe examines judicial review and its role in democracy in the monograph
on Judicial Activism in India. Judicial activism, argues Prof.Sathe, is inherent in judicial
review. The book is an important contribution to the debate on the role of Courts and
S.R.Nayak, Protection of Human Rights, Journal of Law and Social Policy pp.34-40.
Anjana Maitra, Human Rights and Indian Constitution, May 13, 2007.
B.S.Tyagi, Judicial Activism in India, New Delhi, Srishti, 2000
S.P.Sathe, Judicial Activism in India, Oxford University Press (India), 2003.

29

Roosevelt

39

the ramifications thereof. The coverage is not only legal, but also historical, political and
philosophical. This work covers all the important judicial pronouncements in recent times
which highlight the fact that the Supreme Court of India has continued to play the role of a
positivist court. Important decisions have been analyzed by Prof.Sathe on issue of secularism,
Majoritys Right equal to Minority Right, Right to establish educational institutions, Right to
establish Religious and charitable institutions, Right of education, policy of Disinvestment,
conflicting claim of Supremacy between Parliament and Supreme Court and other related
issues.
The Economic Times focuses on Limit Judicial Activism touches the grey areas of activism
37
by reflecting the views of Justices A.K.Mathur and M.Katju of the Supreme Court. These
two judges have called for a halt to the excesses in judicial activism by citing the decisions of
Delhi High Court and Punjab High Court. The Delhi High Court encroached into the realm of
the executive and legislature by identifying buildings to be demolished a illegal, and laying
down detailed conditions for admissions into nursery schools, free beds in hospitals and the
size of the road speed breakers.
The justices made these remarks while striking down a Punjab High Court decision directing
a golf club to create a formal post to which a mali should be appointed (the golf club case),
one more example of judicial excess. The judiciary has neither the expertise not resource to
take over the functions of the executive. In the opinion of the justices, such activism disturbs
the delicate balance of powers enshrined in the Constitution.
However, The Economic Times has on occasion cheered judicial activism with a note of
caution to guard sufficiently against the excess of activist judges. Judicial activism has its
virtue. The activist judges are widely seen as the only hope for justice that ordinary folk have
in the face of a callous, venal and incompetent executive.
Mention may be made about the works of A.Krishna Kumar,

38

and also Kermit

on judicial activism. Arthur Schlesinger Jr. introduced the term judicial

The Economic Times: Opinion, Limit Judicial Activism, 12 Dec. 2007.
A.KrishnaKumari, Judicial Activism: Need for Reforms, ICFAI University Press, 2008
Kermit Roosevelit, The Myth of Judicial Activism, Universal Law Publishing, 2009.

30

activism in a January 1947 Fortune magazine article titled. The Supreme Court: 1947. But
Schlesinger failed to explain what counts as activism and also declined to say whether
activism is good or bad. From the very beginning, the phrase was controversial.
40

Justice Madon said: A Judge who denies to himself judicial activism denies to himself the
role of judge. Nature abhors a vacuum. Take away judicial activism and tyranny will step in
to fill the vacant sphere.
In a country like India more than eighty percent of people are economically backward and
they are subjected to discrimination as a rule. In such an explosive situation causing adverse
effects on society, when the executive and legislature are apathetic and fail to discharge their
constitutional duties and deliver the goods, the apex Court which is the custodian of the
citizens rights and liberties and which in that capacity acts as sentinel on the qui vie has no
other choice but to step is and direct these constitutional functionaries to discharge their
obligation. When the bureaucracy shows a callous indifferences and insensitivity to the
mandatory duties which affect the basic rights of the people and when the law enforcing
agencies exhibit their brutality in the process of implementation of law, should the Court
remain a passive observer of the scenario? Will judges of the highest Court be justified by
sitting in an ivory tower like an Olympian closing their eyes to the stress and storm that affect
society and remain into cocoons or in isolated or protected cells without giving appropriate
mandate and thereby protecting the Fundamental Rights and liberties of the citizens of the
41
country, asks Justice Pandian .
Upendra Baxi described judicial activism as "the gradual judicial takeover of 'the direction
of the administration in a particular arena from the executive' as creeping jurisdiction.

As quoted by T.K.Tope in T.K.Tope, Supreme Court of India and Social Jurisprudence, (1988) 1 SCC (Jour) 8.
L.K.Jha Memorial Lecture, Bhartiya Vidya Bhavan (1996). As quoted in M.V.Pylee, Constitutional Government
in India, S.Chand Publication, Delhi 2004, at 350.

31

2.2. Judges on Judicial Activism

Justice Bhagwati: remarked ''Today a vast revolution is taking place in the judicial process;
the theatre of the law is fast changing; and the problems of the poor are coming to the
forefront".
Justice Pathak observed: "An activist Court, spear-heading the movement for the
development and extension of the citizens Constitutional rights, for the protection of
individual liberty and for strengthening of the socio-economic fabric in compliance with
declared Constitutional objectives, will need to move with a degree of judicial
circumspection".
Justice Krishna Iyer, a votary of judicial activism opined: "Judicial activism is really the
dialectic of the present situation : the Court operating to fulfill the rights conferred by the
Constitution and the executive taking the opposite stand of not implementing those rights but
ignoring them in favour of the rich and against the poor. There is really a thesis and anti-thesis
and the synthesis arising from the Court finding a solution by issuing appropriate writs. This
is the dialectic of judicial activism". According to Justice Krishna Iyer, Every Judge is an
activist, either on the forward gear or on the reverse.
Justice A.M. Bhattacharjee observed: "If the legislature and the executive are not
sufficiently active, then judicial activism including judicial law making may be the only
remedy. And even when Modem Legislatures, so preoccupied with multifarious nonlegislative activities, choose to be active, their hurried legislations made ad hoc to meet
immediate problems or to suit immediate necessities very often result in lawless Science of
Law and to rescue law from such lawlessness of Jaw and to make it to promote the welfare of
the people by securing and protecting, as effectively as possible, a Social Order in which
justice, social, economic and political, shall inform all the institutions of the national life,
judicial activism including judicial law-making becomes a dire necessity".
Justice Madon of the Supreme Court of India while speaking in the International Judges
Conference, held at New Delhi in 1984 observed. "Judicial activism has been throughout
centuries and in many legal systems an important instrument for developing the
32

law, to make its broad and general rules applicable to an ever changing society, to deduce
from old precedents an analogous reason to resolve different types of conflicts arising out of
altered circumstances and technological advance. A judge who denies to himself judicial
activism denies himself the role of a judge.
Justice A.M. Ahamadi while delivering Dr. Zakir Hussain Memorial lecture at New Delhi in
February 1996 defended judicial activism and observed: "When citizens raise grave
Constitutional issues and exercise their fundamental rights in invoking its jurisdiction, the
Supreme Court is left with little choice but to act in deference to its constitutionally
prescribed obligations. This is the reason why the Court has had to expend its jurisdiction by,
at times, issuing novel directions, to the Executive; something it would never have resorted to
had the other two democratic institutions functioned in an effective manner".
th

Justice Kuldip Singh, while delivering the 12 Birla Memorial Oration on Human Rights
and Judiciary remarked. "It was the duty of the Judiciary to step in whenever the Government
failed to enforce basic human rights ... The government was duty bound to ensure that the
fundamental human rights were enforced in conformity with the spirit of the Constitution.
The legislators and administrators are least worried about the common man. It is in the very
preview of the Judiciary to see that government agencies are performing in the people's
interest".
Justice Shivraj Patil declared: The Judiciary had been forced to intervene on certain
occasions when the other two wings of democracy executive and legislature had failed. If the
Judiciary were to fail to act, it would result in chaos and as it is the duty of the Judiciary to
preserve law and order, it does act".
Rajeev Dhawan observed: "Judicial activism is simply ensuring the systematic enforcement
of Court orders and the rule of law. It is the power of the judges to interpret and, perforce,
create law. Judicial activism flows from the failure of the executive to adhere to law.

33

The law is what the courts do. Justice Cardozo opined in his book, The Nature of the
Judicial Process: The Law never is, but is only about to be. It is not what the judges have said
42
but what they will do.
2.3. Good Governance and Human Rights
Governance simply means the process of decision making and the process by which decision
are implemented. The quality of governance depends, in a large measure, upon the indulgence
shown by subjects, to quote Y.K.Sabharwal.
Governance covers performance of democratic duties. Governance is not Government. Good
government cannot be at the expense of democracy. The full inclusive view of democracy
will not only cover material wealth but also ethical values. What India need today is
democratic governance which is a concept wider than the democracy concept wider than the
democracy conceived by electoral ballot?
The World Bank had defined governance as the manner in which power is exercised in the
management of a countrys economic and social resources.
The organization for Economic Co-operation and Development (OECD) describes
governance as the use of political authority and exercise of control in a society in relation to
the management of its resources for social and economic development.
The relationship between good governance and Human Rights is mutually reinforcing and
sometimes overlapping. Good governance cannot be achieved without respect for Human
Rights.
The true test of good governance is the degree to which it delivers on the promise of Human
Rights civil, cultural, economic, political and social rights. What is needed today into
consider the concept of Human Rights in Development.
An important area of abiding public concern which the Supreme Court has dealt with in
Public Interest Litigations is good governance and the accountability of public officials.
Quoted by Or. Rambabu Dubey and Geeta Shrivastava, The Realistic School and Judicial Activism in India,
Central India Law Quarterly, Vol.XIII, pp.433-441, Indianlanoon.org/doc/1462893/1/12

34

The trust reposed in persons holding public positions (e.g., Ministers/ government officials)
and exercising public power is belied when discretion is exercised irregularly in allotment
orders. These acts get exposed through what have now been termed as scams. The Supreme
Court has played a major role in not only unearthing scams but also carrying the discovery of
such facts to their logical conclusions. The court has ensured that persons exercising
discretion in the distribution of public quotas, whether it is petrol pumps or government
43
accommodation, are accountable for their actions of criminal breach of trust. The Supreme
Court quashed the allotments of discretionary quota and also directed to pay for the
exemplary damages to the exchequer.
2.4. Role of Media in Protection of Human Rights
44

Respect for human rights lies at the heart of good governance, says Justice S.R.Nayak.
45

Right to education, health, right to life, right to privacy , right to free speech fair trial, right
against abuse, right to form an association, right against illegal detention, right of movement,
right to information etc., form a wide spectrum of human rights that need to be zealously
protected. Media play an important role in the crusade against violation of human rights.
Media have a duty to respect and promote human rights. In the context of the increased
violations of human rights, the Courts and the judges are expected to evince active role to
protect and promote human rights of citizens. In a democratic society free media can be a
powerful instrument against abuse and violation of human rights.
Human society has developed from Stone Age to Space Age. Some societies have developed
space, the others seem to be nowhere in the race. In the light of a revolutionary change and
growth in every sphere of life and mainly in the communication and media world,
Common Cause v. Union of India (1996) 6 SCC 530 at 552, 553; Common cause v. Union of India (1999)
SCALE 354 at 413; Shiv Sagar Tiwari v. Union of India (1996) 6 SCC 558; Shiv Sagar Tiwari v. Union of India
(1996) 6 SCC 559; Vineet Narain v. Union of India (1996) 2 SCC 199 at 200 -1; Anukul Chandra Pradhan v.
Union of India, 1996 (3) SCALE SP 27, 35; 1996 (4) SCALE SP 13, 71; 1996 (6) SCALE SP 23; and (1996)
6 SCC 354.
Justice S.R.Nayak, Protection of Human Rights, Journal of Law and Social Policy, p.34.
Right of Privacy includes some important areas like breach of confidence, Commercial information, personal
autonomy, sexual autonomy and physical intrusion. Supreme Court of India recognized Right of Privacy under
Art.21 of Constitution of India as a Fundamental Right. In India there is no comprehensive legislation on
privacy Rights, contrary to the contention of legislation in U.S.A. on Privacy Rights.

35

media today play a decisive role in the development of society. Media employed for
transmission of information include telegraphs, telephone, radio, television, computer, telefax
46
and national and international satellites . The free media can be used by human rights groups
effectively in their struggle for protection of human rights. For instance, in the recent case
pertaining to molestation of a minor girl Ruchika, Media Activism could take on might
interests that denie`d justice for nearly two decades. The media can come to the rescue of
citizens who are denied fair trial by powerful interests.
The modes of communication, initially oral or handwritten, have multiplied in recent times,
as a result of inventions such as telegraph, telephone, photography, film, radio, television,
teleprinters, computers, teletax, etc., Communication is Central to the developmental process
of a Country in more than just the economic sense. Without effective communication, a
democracy cannot function and socio-economic development cannot be sustained.
Communication is the web that holds together a society whether agricultural or industrial.
Also, communication facilitates better understanding among nations, and people or groups
within a nation. There is a need to pursue courses of action that encourage a freer and more
reciprocal exchange of information among nations.
2.5. Victims of Crime
47

J.S.Patil (2010) in his paper presented at the Karnataka State Prosecuting Officers IX State
Level Conference exposes that Victims are classified during investigation in three general
categories, viz. High Risk Victims, Moderate Risk Victims and Low Risk Victims and
examines the statutes under which compensation may be awarded to the victims of crime.
He concludes with the remark that A careful peep into the Indian Criminal Justice Delivery
System reveals that victims of crime in India are neither compensated comprehensively nor
allowed to participate effectively in the investigatory, prosecutory and sentencing process.
He suggests that it is imperative to create an institutionalized system of payment of
compensation by creating Victim Compensation Fund.
Professor K.D. Gaur, Law of Telecommunications and Broadcasting in India, Indian Bar Review, vol. 27(2)
2000, p.15
J.S.Patil, Victims of Crime: A Need for Justice, Lawyersclubindia.com/articles.id=5304,pp.1-9

36

48

K.G.Balakrishnan, J.,(2000) , while speaking about the criminal Justice Reforms, laments
on high incidence of arbitrary arrests and custodial abuses even for minor offences and
cautions that the emerging crime scenario seriously threatens national security and economic
development, warranting joint strategic measures between the union and the States on the
basis of clear principles, priorities and objectives. Justice accepts that in the absence of a
clear legislative framework, even the higher judiciary has been inconsistent in awarding
compensation to victims.
49

The Hindu (November 4. 2013) in its recent review on Victim Compensation Scheme
Remains a Distance Dream reports that Sec. 357-A of the Cr.PC which came into effect
across the country in December 2009, empowers trial courts to recommend the grant of
compensation to victims of Criminal offences and their dependents and requires every State
government to frame a Victim Compensation Scheme (VCS) in consultation with the centre
and allocate separate funds for it. However, the Tamil Nadu State government is yet to frame
a scheme and allocate funds for the purpose despite pledges made to Madras High Court to
implement it at the earliest. The promise was not honoured, despite the anguish repeatedly
expressed by Judges over the inaction of the government. As a result, the State and the
District Legal Services Authorities are unable to award adequate compensation. Moreover, as
per the Tamil Nadu Prison Manual, the State is deducting 30 percent of the income earned by
prisoners of rigorous imprisonment towards victim compensation; but the deducted amount
has been accumulating without being disbursed to the victims or their dependents. It was
reported that revenue officials in every district are disbursing the money to persons
unconnected with the crime.
2.6. Victim of Compensation under Indian Legal Framework
50

Abhishek Anand in his paper on Compensation to the Victim of Crime Assessing

Legislative Framework and Role of Indian Courts explains the Indian legal framework
regarding compensation to victim of crime under two heads: (i) Legislative framework
K.G.BalaKrishnan, J., Criminal Justice System G rowing Responsibility in Light of Contemporary Challenges,
D.P.Kohli Memorial Lecture, New Delhi, April 2, 2009.
www.thehindu.com/todays-paper/tp-national/tp-tamilnadu
LSI Laws in India: Facebook Share on Twitter.

37

comprising the Criminal Procedure Code, Probations of Offenders Act and Constitution of
India; (ii) Judicial response, consisting of plethora of cases. He also suggests that if possible,
it would be better to give the compensation as a right to Victim.
51

Anil Trehan (2008), while analyzing the victim compensation scheme in India, admits that
victim is a very difficult concept to define and views that victim justice is a distant possibility
and stresses on the need for victim compensation programmes.
52

The primary focus of Jhalak Kakkar and Shruti Ojha (2009) was an analysis of the
amendment made to the Indian Criminal Procedure Code of 1973 in 2008 (the amendments
were notified in Dec. 2009) and pointed out the major thrust of the victim related
amendments were on defining victim and recasting existing defunct laws related to the
provision of compensation to victims. They highlight certain persistent doubts raised on
reforming Indias archaic criminal laws: Unfortunately the major fallacy of the recent law is
that it once again seems to leave the provision of compensation to the role discretion of the
judge. According to the authors, as observable by the judicial trends, Compensation available
under a constitutional remedy has been far more readily invoked and amounts of a greater
quantum have been granted under Section 357(3), of the CrPC. The judiciary has to be urged
to be liberal in invoking Section 357 A and ensure that it is not the non-exercise of discretion
by them that become the vanishing point of victim compensation in India.
53

Vikram Raghavan in his paper entitled, Compensation through Writ Petitions: An Analysis
of Case Law (1994) has established that the award of compensation has become an obligation
of the State through writ remedies enforceable by the High Courts and Supreme Court
(Articles 226 and 32 of the Constitution of India), for the wrongs done by the State. He
suggests that the judiciary must use the provision of compensation to grant relief in
appropriate cases.

Anil Trehan, Victim Compensation under the Indian Criminal Law and Other Laws, NYAYA DEEP, Vol.IX(3),
July 2008, pp. 63-70.
Jhalak Kakkar and Shruti Ojha, An Analysis of the Vanishing Point of Indian Victim Compensation Law, Journal
of Indian Law and Society, Vol.2: Mansoon, 2009, pp. 313-340
Manupatra, Student Advocate, Vol.6, 1994, pp. 97-104

38

2.7. Victim An International Perspective

54

K.Chocklingam (2003) reviews the victim compensation programmes in Asian Countries

only with separate victim compensation programmes, i.e., Japan, Korea, the Philippines and
Taiwan and concludes that although India has engaged in various reforms in criminal
investigations and prosecution, the sufferings of crime victims have been largely neglected.
55

Girjesh Shukla (2013) scrutinizes various established theories and principles relating to
criminology, and attempts to link them with present day trends in Indian legal system, and
also attention has been paid to victims right in United States and Canada and a comparative
analysis of judicial approach to victims right in US and Canada.
56

Sushila Rao (2006) examines the position regarding constitutional torts and payment of
compensation for the violation of Constitutional Rights in the USA, in order to provide a
comparative framework for contextualizing the introduction of the same in India, and further
outlines the different approaches to governmental liability in the USA and traces the genesis
and fruition of an analogous device in India.
57

Murugesan Srinivasan and Jane Eyre Mathew (2007) have emphasized the need to
provide assistance to Crime Victims in India and briefly analyzed some of the landmark
judgments that have provided justice to victims of crime. Finally, they provided certain
practical suggestions taking into account the experiences at the international level to improve
the condition of Crime Victims in India. The authors after examining the crime scenario,
concluded that like in the United States, Europe and other developed countries, both the
Government of India and State Governments should enact exclusive legislations for victims
of crime, as the existing provisions in the criminal laws are not sufficient and finally opined
K.Chockalingam, Position of Victim Support Schemes in India, In Tatsuya Ota, ed., Victims and Criminal
Justice: Asian Perspective, Tokoyo, Hogaku Kenkyu Kai, Keio University, 2003, pp. 63-82
Girjesh Shukla, Criminology: Crime Causation, sentencing and Rehabilitation of Victims, Gurgaon-Haryana,
2013, pp.207 -242.
Sushila Rao, Constitutional Rights Violations and Compensatory Jurisprudence in India and USA: Justifications
and Critique, Student Bar Review, vol. 18(1), 2006, pp.93-111
Murugesan Srinivasan and Jane Eyre Mathew, Victims and the Criminal Justice System in India: Need for a
Paradigm Shift in the Justice System, TEMIDA, Jun. 2007, pp. 51-62

39

that victim justice should be perceived as complementary and not contradictory to criminal
justice.
58

Justice G.Yethirajulu(2004) , explains the development of awarding compensation under

Article 32 of the Constitution of India by the Supreme Court i.e., the compensatory
jurisprudence, though there is no express provision for awarding compensation under Article
32 and also examines the experience of European Countries.
59

Jasper Vikas George (2005) admits that a number of techniques are available all over the
world, which primarily consists of mediation between the victim of the Crime and the
offender, such as Victim Offender Mediation (VOM) Model originated in Canada, Family
Group Conferences model originated in New Zealand and a modified model of New Zealand
adopted in Australia which incorporated Reintegrative Shaming theory. The author unearths
the working of Panchayat Model in India right from the ancient times. The main aim of the
village panchayats is to restore the victims of the crime.
2.8. Need for Sensitization of Judiciary about Compensation to Victims
60

K.K.Bajpai (2005) stresses on the sensitivity of police officers and judicial magistrates to
enable the Victim (informant) to be acquainted with the progress of the case during trial and
pleads for evolving a comprehensive scheme of payment of compensation by offender as well
as by State based on sound and certain legal premises.
61

S.V.Ravi Kant (2009) explains the features of the code of Criminal Procedure
(Amendment) Act 2008 (5 of 2009), now with an added provision in the form of the Section
357-A on victim compensation.
62

Tejaswini D. Khade outlines the innovative approach of the apex court in awarding
compensation and advocates the need for sensitization of judiciary, particularly subordinate
judiciary which rarely invokes the provision to award compensation to the victims.
Justice G. Yethirajulu, Article 32 and the Remedy of Compensation, (2004) 7 SCC(J) 49; ebcindia.com/lawyer/articles/2004 7 49.htm
Jasper Vikas George, Compensatory Jurisprudence for the Victims, 2005
K.K. Bajpai, Compensation & Restitution to the Victims of Crime, PUCL Bulletin, March 2005.
S.V.Ravi Kant, Recent Changes in the Legal Process in India, NNLRJ INDIA, Comment Jun. 2009
Tejaswini D. Khade, Victimology Need for Implementation of Existing Laws.

40

63

Subhradipta Sarkar (2010) discusses the current situation of victims in India and the
ability of the trial court to award compensation in cases of acquittal to the victim under Sec.
357 of the Cr.PC and demonstrates that Dalits are discriminated and victimized every day in
ways, ranging from social boycotts to grave criminal offences, inspite of constitutional and
legislative protections. The author concludes that the compensation provision of the Criminal
Procedure Code is of little value and suggests that India must also pay greater attention to
reparation both monetary and non-monetary forms.
2.9. Victims of Violence Sexual Abuse against Women and Children
64

Praveen Swami (2001) projects the terrifying facts about child abuse in India with statistical
data (age-wise & region-wise) and infers that sexual abuse is only part of a wider gamut of
violence. He expresses that Indias Criminal Justice System simply doesnt have either the
legal instruments or police infrastructure to deal with crimes against children. India is yet to
pass a specific law on child sexual abuse a legislative failure that makes prosecution in
many situations impossible. He feels that for the most part, Indias children live in a
nightmare a dystopia founded on collective complicity and silence.
65

Kirti Singh in Frontline (2010) observes the adverse aspects of Rathores crime against the
abuse of a minor girl in Haryana that plagued the criminal justice system in India. The article
supplies a detailed report about the case and a definition of rape which runs as being a
physical invasion of a sexual nature, committed on a person under circumstances which are
coercive.
66

V.Venkatesan in Frontline (2010) also writes about the harassment of victim a minor girl
in Rathores Case and the inordinate delay in the conviction and sentencing the criminal
which has lessons for Indias Criminal jurisprudence and stresses the need for reforming
suitably the current laws concerning violence against women.
Subhradipta Sarkar, The Quest for Victims Justice in India, 2010
Praveen Swami, Our Crimes Against Our Children, The Hindu, January 21, 2010.
http://www.hindu.com/2010/01/21
Kirti Singh, Minor Offence, Frontline January, 16 -29, 2010. http://www.frontlineonnet.com/stories.
V.Venkatesan, The Rot Within, Frontline, 16-29, 2010. http://www.frontlineonnet.com

41

2.10. Legal Framework Needed for Indias use of Nuclear Energy- Union Carbide Gas
Tragedy: Unsettled Issues
67

V.N.Haridas and Yash Thomas while writing for open Democracy (2010) view seriously
about the inability of the Indian judiciary and legal profession to handle complex tort cases
like leakage at Bhopal, the absence of legal framework for dealing Multi National
corporations and the extreme delay in providing justice (in its fullest sense), covering
compensation, liability, etc., The legal framework in the US and France, unlike that in India,
covers all aspects of the use of nuclear energy, through compensation, public participation
and transparency. The Atomic Energy Act enacted in 1948 and replaced in 1962, does not
specifically deal with the question of compensating nuclear damage. The authors suggest that
introducing a comprehensive legal framework relating to the use of nuclear energy for largescale electricity generation projects, is the only way the Indian Government can allay public
fear.
The failures of the formal legal system in India, in the context of mass disasters, are best
exemplified by the Bhopal Disaster caused by the MIC gas leak from the factory of Union
Carbide India Limited (now Eveready Industries India Limited) on the night of December 23,
1984.
The Supreme Court of India in 1989 approved the settlement of Union Carbide Corporation,
New York (UCC), to secure immediate relief to the Bhopal Gas victims on both judicial and
humanitarian grounds, inspite of the inability of the Indian legal system to provide
meaningful and effective redress. The Bhopal disaster continues to be a grim reminder of the
inability of the legal system to cope with the challenges posed by such mass disasters and
mass torts which remains as an unfinished agenda.

V.N.Haridas and Yash Thomas, Beware Bhopal! Legal Framework Needed for Indias use of Nuclear
Energy; http://www.opendemocracy.net/openindia.

42

2.11. Gender Justice and Women Empowerment

68

The Manual on Womens Development and Gender Justice edited by Rainuka Dagar,
released by the Ministry of Human Resource Development, Government of India in 1998,
attempts at sensitization about the grossly neglected issue of the grossroot level, viz., gender
justice and Womens development. This Manual highlights the fact that the persons who
indulge in gender injustice are under the influence of patriarchy. It accounts for the visible
forms of gender injustice such as wife-beating, dowry, eve-teasing etc., and suggest making
role allocation fluid rather than stereotyped and considering women as productive wage
earners rather than merely income augmenters.
69

Krishna Study Academys publication on Judicial Activism in the Area of Women

Empowerment admits that there are so many areas of women empowerment where there is no
law for the protection of women; in that case judiciary is the last hope. Because only judiciary
can give justice by applying its activist power as in Vishakhas Case regarding the question of
sexual harassment of women. Judicial activism has declared some guidelines towards
protection of women at workplace. In case of compensatory jurisprudent also judiciary has
realized the need to compensate the victim of violence against women, but in Criminal law,
there is no such specific law regarding the compensatory jurisprudence. Through judicial
activism judiciary is able to provide progress in the area of women empowerment. This study
views that judicial activism as a weapon in the hands of judiciary to provide justice to the
people and it can be used by the judiciary in favour of social interest or for common good.

2.12. Violence against Women

70

Puja Jaiswal and Priyanka Jain in their article on Violence against Women: a Human
Rights Violation, observe that womens human rights are violated primarily because of their
sex. Women do not enjoy their rights to the full extent. This is due to gender
Rainuka Dagar(ed.,), Manual on Womens Development and Gender Justice, Department of Youth Affairs and
Sports, Ministry of Human Resource Development, Government of India, 1998.
www.Krishnastudyacademy.com/legal-essays/294
Puja Jaiswal and Priyanka Jain, Violence Against Women: A Human Rights Violation, in Shveta Dhaliwal (ed.,),
Human Rights Advocacy: Global Approaches, Local Experiences, Punjab, Rajiv Gandhi National University of
Law, 2010, pp.182-196.

43

inequality, direct and indirect discrimination, coercion and violence. The reality is that
violations against womens human rights are often sanctioned under the garb of cultural
practices and norms, or through misinterpretation of religious tenets. The women are abused
and experience torture, imprisonment, slavery, displacement, discrimination and other
violations, simply for fact that they are female. The girl-child is discriminated against form
the earliest stages of life, through her childhood into adulthood. While both women and men
suffer from specific human rights abuses, much of their experience of human rights is
gendered. Hence, there is the need to develop human rights jurisprudence. The authors
conclude by saying that Human rights of women and of the girl child are inalienable, integral
and indivisible parts of universal.
71

D.K.Bhatt in his Human Rights and Gender Issues: A Socio-Legal Perspective, furnishes
the concept of human rights, human rights and women an international overview and also
supplies the Indian scenario on human rights of women with particular reference to right to
education, right to health and nutrition and more importantly right of women against
exploitation and abuse and finally offers suggestions. D.K.Bhatt classifies gender-based
violence as adopted by the U.N.Committee on CEDAW in January 1992 into: (i) Violence
occurring in the family; (ii) Violence occurring within the general community; and (iii)
Violence perpetrated or condoned by the State. The author observes that in the Indian horizon,
the apex court has frequently resorted to evolving novel measures such as compensatory
jurisprudence, judicial law making and the like with a view to secure gender justice.
2.13. Sexual Harassment of Women at Work Place
72

Mrs.Nuzhat Parveen Khan in her paper on Sexual Harassment of Women at Work place
defines the term sexual harassment as suggested by Justice J.S.Verma and discusses the role
of law in dealing sexual harassment along with the guidelines offered by the Supreme

D.K.Bhatt, Human Rights and Gender Issues: A Socio-Legal Perspective, Indian Bar Review, vol.27 (1) 2000
Nuzhat Parveen Khan, Sexual Harassment of Women at work place, Indian Bar Review, vol.27 (1) 2000, p.61-68

44

Court of India and also explains some case laws. The author regrets that in a patriarchally
superior society of India, women are viewed as second class citizens of sexual objects.
73

Dr.Krushna Chandra Jena in a paper titled Sexual Harassment of Women in the Work
Places A Human Rights Violation, argues that sexual harassment of Working Women
amounts to violation of rights of gender equality, right to life and liberty and right to practice
any profession or to carry on any occupation, trade or business under Articles 14, 21 and 19
of the Constitution. The author discusses in detail the historic case of Vishakha v. State of
74
Rajasthan and the landmark judgment of the Supreme Court.
75

Dr.Ran Bijay Kumar in his work on Sexual Harassments of Working Women examines the
different forms of sexual harassment and offers remedial measures to prevent sexual violence
and atrocities against women in a male dominated social order and insists on the possible
severest punishment for the death of women by murder or by forced sucide, whether for sex
or for the heinous harassment. The author seriously views that Rape becomes menance or the
meanest crime when victim is the female child of tender age. There can be no more ghastly
crime than the deflowering of a child by rape. Similarly extremely shocking when a pregnant
76
women is raped and the child dies even before birth.
77

Dr.Jyoti Bhakares , Sexual Assault against Women Need for Reforms, discusses about
the provisions of Constitution of India, Indian Penal Code Section 375 and 376D (dealing
with the offence of rape) and Cr.PC Amendment Act, 2008 and also examines in detail the
case laws pertaining to sexual assault against women. The author opines that Indian Penal
Code deals with offence of rape and outgoing modesty of women. Nowhere in the Act
Sexual Assault is seen.

Krushna Chandra Jena, Sexual Harassment of Women in the Work Places, Indian Bar Review, vol.XXXI(3 &4)
2004, pp.459-466.
AIR 1997 SC. 3011
Ran Bijay Kumar, Sexual Harassments of Working Women, Indian Bar Review, vol.XXXV (1 to 4) 2008, pp.7582.
Id. P. 81
Jyoti Bhakare, Sexual Assault Against Women Need For Reforms, Journal of Minorities Rights 1(1) 2010,
pp.21-35

45

2.14. Sexual Abuse of Girl Child

78

Sunil S.Hosamani in an article on Protection of Girl Child against Sexual Abuse, explains
the meaning of child sexual abuse, protection of child through international conventions,
protection under Indian Constitution and legislative provisions and also judicial intervention
to protect girl child against sexual abuse by citing case laws in India. While concluding the
discussion, the author expresses that It has been also observed from various judgments of
decided cases that in many cases at the time of pronouncing punishment for committing
offence against the children, mainly in case of sexual offence, judiciary often gives the lesser
79
punishment in comparison with the gravity of offences committed by the offender.
Manisha Pawar

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in Rights of the Women and Child, highlights on types of Womens

Rights which include: the right to bodily integrity and autonomy; the right to vote; the right to
hold public office; the right to work; the right to fair wages; the right to own property; the
right to education; Marital Rights; Parental Rights and Religious Rights. The author discusses
in detail Womens rights under the Constitutional law, the Criminal laws, the Civil laws, the
Labour laws of India. The author feels that in fact, some of the Personal laws discriminate
against women, when it comes to land and property rights. This work also exposes the rights
of the child, including the unborn childs rights under Personal laws (Hindu, Muslim, Parsi
and Christian laws), besides furnishing childs rights under Labour laws.
81

Dr.Chhaya Gala in Human Rights of Women, after analyzing the Indian scenario of human
rights of Women, reaches the inevitable conclusion that Human rights of women have gained
considerable visibility in recent years, but public knowledge of them is inadequate. In order
to eliminate discrimination and to covert equality of women from de jure to de facto it is high
time that Human Rights of Women are given priority.

Sunil S.Hosamani, Protection of Girl Child against Sexual Abuse, Indian Bar Review, vol.XXXIII (1to4) 2006,
pp.221-234.
Id. P.233
Manish Pawar, Rights of the Women and Child, Journal of Minorities Rights 1(1) 2010, pp.52-59
Chhaya Gala, Human Rights of Women, Journal of Minorities Rights, 2(1) 2011, pp.44-50

46

82

H.Rama Mohan Rao in his work on Human Rights Violation in Unorganised Sector
With Reference to Women, portrays the position of Women under Indian Constitution 1950 in
detail and points out that women are still the subject of suppression and oppression. Many
promises of improving the plight of women were made out, but they reminded as unfulfilled
distant dream.
2.15. Domestic Violence and Sexual Harassment
83

Dr.Krushna Chandra Jena , Towards Protection of Women from Domestic Violence and
Sexual Harassment, observes that women who face the problem of family violence, domestic
violence are denied their fundamental rights to life, health, bodily integrity, privacy, shelter
and food. With the enactment of the Protection of Women against Domestic Violence Act
2005, Domestic Violence was brought out of the realm of the private sphere and addressed it
as a human rights concern with a serious deterrent to development. The author views that the
phenomenon of domestic violence is widely prevalent but remained largely invisible in the
public domain. While discussing the protection of Women against sexual harassment at
Workplace, the author suggests that most women hesitate to complain such harassment
caused by their employers because of the fear of losing jobs, so new legislations must
incorporate provisions to protect their jobs, when complaints against sexual harassment are
made by them.
84

Lalit Dadwal and Kusum Chauhan , in their exhaustive paper titled Domestic Violence:
Causes, Consequences, Legislative and Judicial Response, explain the meaning of domestic
violence, historical overview, reasons of domestic violence, international and national
protection of women and reliefs available under the Protection of Women from Domestic
Violence Act, 2005. Domestic violence usually involves the infliction of bodily injury,
accompanied by verbal threats and harassment, emotional abuse or the destruction of
property as means of coercion, control, revenge or punishment, on a person with whom the
H.Rama Mohan Rao, Human Rights Violation in Unorganised Sector With Reference to Women, Journal of
Minorities Rights, 2(1) 2011, pp.51-57
Krushna Chandra Jena, Towards Protection of Women from Domestic Violence and Sexual Harassement,
Indian Bar Review, vol.XXXIII (1 to 4) 2006, pp.151-159
Lalit Dadwal and Kusum Chauhan, Domestic violence: Causes, Consequences, Legislative and Judicial
Response, Indian Bar Review, vol.XXXIV (1 to 4) 2007, pp.213-244

47

abuser is involved in intimate relationship, as viewed by the authors. Women are victimized
within the four walls of their own home and not by strangers but by the same people they call
their own. The authors also identified the reasons for domestic violence as: The Causative
factors of domestic violence are illiteracy, unemployment, religion, economic inequality, drug
abuse or alcoholism, social conditioning and patriarchal structure etc.
85

Nishu Rusia and Niharika Pandey in their article titled Domestic Violence Violation of
Human Rights view that domestic violence includes physical abuse, sexual abuse,
psychological abuse and economic abuse. They also discuss dowry-related violence and
measures to combat domestic violence and point out the lacuna in Indian laws. They conclude
that No Commission or no police station can police every nook and corner of the Country. No
NGO, no any other agency can be present everywhere to protect the Human Rights... it is the
duty of every civilized person to rise to the occasion.
86

Justice A.S.Anand opined that Domestic violence does not only mean harassment or
cruelty at the hands of husband or the in-laws, it includes offences like incest, mutilation of
private organs, rape, abortion of female foetus, molestation, unnatural sex, assault or battery
and the like.
87

Mrs.Justice. Roshan Dalvi in her article on Human Trafficking: The Angle of victimology:
An Overview, defines victimology as the science of preventing crime, protecting the victims
from crime, prosecuting the crime, allowing them representation in such prosecution on their
behalf, and punishing the offender taking into account the perspective of the victim in terms
of the aftermath of the crime upon such victims. She describes that various legislations and
precedents show the wide spectrum of cases relating to Human Rights. However, in one
corner of Indian society the most neglected, fragile and tortured humans women and
children remain outside the long arm of law relating to protection of their Human Rights.
They survive in the darker, drearier side of Human Rights violations. Low female
Nishu Rusia and Niharika Pandey, Domestic Violence Violation of Human Rights, in Pravin H.Parekh (ed.,),
Human Rights year Book 2010, Delhi, Universal Law Publishing Co.Pvt.Ltd., 2010, pp.218-226.
A.S. Anand, Justice for Women: Empowerment through Law Inaugural Address in a colloquium at New Delhi,
The Hindustan Times, New Delhi ed., 9th May, 1999.
Justice Roshan Dalvi, Human Trafficking: The Angle of Victimology: An overview in pravin H.Parekh (ed.,)
Human Rights year Book 2010, New Delhi, Universal Law Publishing Co.Pvt.Ltd., 2010, pp.55-66

48

ratio, poor law enforcement and the demand, and profit scenario aggravates women victims
situation. She quotes Anusaya Sengupta stating that All over the world women speak the
same language of silence.
The author states that victimology is the most neglected aspect of Indian Criminal system. It
requires a new approach to old thinking. It requires a change of mindset. It has woefully
fallen short in case of child victims of sexual violence and women victims of dowry death.
Hence, she suggests that the need of the hour is the holistic approach to the solution of the
problem that would run through the stages of prevention, protection, preparation, prosecution,
participation, until punishment and parole.
With the exercise of a review of related literature, the present research reflects an image of a
concerted study undertaken to analyze the contemporary debate on judicial activism regarding
the protection of human rights in the context of empowerment of women in India. This
Review Chapter seeks to contextualize the dynamic trend in judicial thought in terms of
efforts to grapple with examining the role that the victim examining the role that the victim
plays in the criminal justice system. Unfortunately Indias Criminal system leaves the
provision of compensation to the sole discretion of the judge. Hence, the prime focus of this
research would be victim compensation and its interface with criminal justice. The present
study also focuses on various landmark cases undertaken by the Indian judiciary revealing its
activist role particularly from mid-1980s.
Let us all be seekers of truth rather than finders of fault.

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