30 - Judicial Activism in South Asia

Judicial Activism and Good Governance in India

Judicial Activism in India and Pakistan

Bangladesh's Experience with Judicial Activism

Judicial Activism and Environment in India

Bangladesh: Protection of Environment through Judicial Activism

Legal Awareness in Bhutan

The History of Political Parties in Pakistan

Geelani and Politics of Accession in Jammu and Kashmir

Floods in PakistanA Brief Overview

Towards Energy Independence in Pakistan

OctoberDecember 2010

Judicial Activism

in South Asia

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Contents

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Judicial Activism in South Asia

he judiciary in South Asia has gradually come into its own, and by the end of the st

first decade of the 21 century, it seems to be playing a very important role in Tcountering the usual third world trend of executive laxity in upholding the law. Activism itself has become a familiar word identifying the judiciary's assertion in

favour of the citizen where the law itself is vague and gives the executive the leeway to

remain remiss or passive. It also indicates a court's tendency to encourage public

interest litigation (PIL) through the use of suo motu notice to highlight and resolve

issues that normally never get raised at the court. There is, however, some controversy

related to this as jurists differ over the uses and perceived abuses of this tendency.

One must take note here that judicial activism began in India and was used by the Indian

courts against the growing high-handedness of the executive and in favour of the human

rights of the citizens, where the law was imprecise and allowed the governments to

ignore the rights of the common man. At first the assertion of the courtfor instance, in

its activism in favour of environment protectionwas seen as unrealistic by the

general public, but the court's insistence in preventive action by the government

resulted in a successful lowering of air pollution in the capital of India. The Indian

court's steady insistence on the right of judicial reviewjudging also all legislation by

the parliament on the basis of the basic structure of the constitutionhas been

welcomed by the jurists in India.

The Supreme Court in Pakistan asserted itself gradually against an executive usually

headed by a military ruler by leaning on the interpretations offered by the Indian

Supreme Court in its reaction to the growing authoritarian tendencies of Indian

governments. This trend grew as the assertion of the Court in India was internationally

seen as an assertion of the rule of law. The activism shown by the Pakistan Supreme

Court after its induction by General Pervez Musharraf relied on PIL through the use of

the suo motu initiation of cases involving the various branches of the executive. This

trend, set by the Chief Justice of Pakistan, is believed to have led to his dismissal, along

with the judges who stood by him, in November 2007. He returned to his office after a

lawyers' movement forced the PPP-led government after the 2008 elections to restore

him.

Two elements in the activism of the Supreme Court of Pakistan should be noted. The

first is the controversy arising out of the excessive incidence of the suo motu PIL cases

which have equally come under criticism in India, compelling the judiciary there to pass

strictures of self-correction. The second is the politicisation of the process of

restoration of the judiciary through public agitation. This sets the activism of the

judiciary of Pakistan apart from those of India and Bangladesh. The Supreme Court in

Bangladesh has been consistently upholding the human rights of the people during

i

Editorial

Editorial

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28

satisfaction test but rather insisting that the government's decision to detain any 27

person must pass judicial examination of objectivity. By way of another example, in a

significantly bold assertion of judicial authority, the court in Sahar Ali v A. R. 28

Chowdhury which concerned s. 30 of the Special Powers Act 1974 that barred any

court from revising any order or judgment of special tribunals established under this 29

Actfamously held that its constitutional supervisory power could not be ousted. This

welcome instance of judicial interpretive activism ultimately triggered legislative 30

removal of the illegality.

However, despite these few instances of upholding the principle of legality, the

Bangladeshi judiciary on the whole abdicated its constitutional responsibility of

protecting the rule of law during the martial law regimes and largely became a partner of 31

usurpers of the constitution.

The Basic Structure Doctrine

The revival of the constitution by the military ruler on 11 November 1986 enriched the

top court judges with a sense of obligation vis--vis Bangladesh's founding mottos of

constitutionalism and democracy. During the waning hours of autocracy but still some

time before democratic restoration, the Appellate Division in its historic 1989 decision 32 th

in Anwar Hossain Chowdhury v Bangladesh invalidated the 8 Amendment to the 33

constitution, thereby entrenching the now famous basic structure doctrine. In

Anwar Hossain Chowdhury the court held that the parliament's plenary legislative and

amendatory power under the constitution is limited in that this power having been a 34

derivative constituent power can not be exercised to alter or destroy its basic

structures. The court was seemingly motivated to uphold the greater public interest and

virtues like the rule of law.

The then military authority by various martial law regulations diffused the High Court

Division into seven permanent benches, and later constitutionalised this change by

amending Article 100 of the constitution. Some lawyers challenging the vires of the

amendment successfully convinced the Appellate Division that, among other things, the

High Court Division's plenary judicial power over the whole republic was a basic

structure of the constitution which was un-alterable even by a constitutional 35

amendment. In a three to one majority judgment, the Appellate Division employed a

holistic interpretation to the constitution and concluded that the parliament with an

unlimited amending power is inconsistent with the concept of constitutional

supremacy, a basic pillar of the constitution.

Despite its several shortcomings and ambivalence in the reasoning of the majority 36 th

judges, the 8 Amendment decision continues to remain the boldest ever instance of

judicial activism in pursuit of constitutionalism in the Bangladeshi polity. The judges, by

and large, were alert to the need for protecting the fundamental aim of society from 37

destruction, and they sought to concretize their reasoning by relying on comparative

29

public law besides taking moral-legal guidance from their own constitution.

There are criticisms, both academic and political, against the basic structure doctrine, 38

which are mostly akin to general criticisms against judicial activism. Critics often

ignore the local political specificities and constitutional imperatives that necessitate a

limitation on the parliament's unbridled amending power. The Anwar Hossain

Chowdhury decision can indeed be an effective guarantee against frequent 39

amendments of the constitution in sectarian and party interest as well as against

omnipotent parliamentary supremacy like the one during the Emergency or martial law

regimes. Critics of the basic structure doctrine also miss the reality that even most

activist judges conform to the dictate of conscience and tend to defer to the

representative organ of the state when the deference is due in examining the

constitutionality of a law or constitutional amendment. As against apprehensions that

the basic structure doctrine might be over-applied, the judges in Bangladesh have shown th th 40

due comity while sustaining the 13 and 14 constitutional amendments. At the same th th

time, they invoked and duly relied on the doctrine recently, declaring the 5 and 7 41

amendments to the constitution that legitimised two successive marital law regimes.

Judicial Activism following Democratic Restoration

Following democratic restoration in 1991, the people's faith in constitutionalism and the

judiciary increased. A surprising surge of litigations aimed at realising the legal rights

and governance imperatives became a feature of this period. And, like the post-

Emergency judicial activism in India, the Bangladeshi judges too seemed to be

developing a consciousness that the legitimate concerns of people should be the central

focus of their business. As a result, post-1991 judiciary embraced public interest

litigation (PIL) and increasingly exercised constitutional judicial activism. These

developments were the essential consequence of a remarkable shift in the court's

interpretational jurisprudence towards creative interpretations.

Progressive judicial interpretations implicating rights, constitutional safeguards and

constitutionalism ushered in a new beginning of judicial activism. In the post-1990

period, thus, we see many new developments especially in the field of right to life and

personal liberty, including a light attempt to construct a theory of public law 42

compensation for breaches of the constitution and fundamental rights, and some self-

initiated (suo motu) judicial interventions by socially sensitive judges who were eager to 43

remove illegality from the country's criminal justice system.

To cite one such activist decision in the area of prevention detentions is Korban v

Bangladesh, where the petitioner was re-detained from the jail gate after his court-

intervened release from earlier detention; the High Court Division awarded against the

detaining authority compensatory costs of taka 5000, but not compensation proper, 44

for arbitrary and colourable exercise of public power. In another exceptional decision, 45

in Bilkis Akther Hossain v Bangladesh (1997) the High Court Division held the

government liable in damages for arbitrary and unlawful detention of some political

leaders. This pro-active decision has not, however, yet become a trend or a precedent,

since it has been pending on appeal in the Appellate Division for the last 13 years.

30

Most striking judgment in defence of the people's fundamental rights was in a case

involving unlawful, lingered incarceration of a young person. In State v Deputy 46

Commissioner, Satkhira (1993) the first-ever reported suo motu intervention, the

High Court Division actually set up a trend of activist adjudication of rights. After having

read a newspaper report, it issued on its own motion a rule in order to free an illegally

detained person who, charged with some baseless criminal allegations, had been

languishing in jail for 12 years with bar fetters tied to his legs since he was first arrested at

the age of 9. On the very first day of hearing, the court ordered to take off the bars and

quashed all pending criminal proceedings against Nazrul Islam, which it found void ab

initio as the convict was charged and tried jointly with adults in contravention of the 47

Children Act 1974, section 6. Nazrul Islam marked the beginning of suo motu judicial

interventions and explored a so far undiscovered source of judicial power. Also, this case

set a landmark in the country's judicial history by issuing various directives to the

government agencies. Quite innovatively, the court directed to make an investigation

into whether any other children were in situations similar to Nazrul's, and also ordered a

report of compliance with the said directives.

The post-1990 court was particularly sensitised to the concerns arising from police

atrocities, custodial death and abuse of police powers. In Alhaj Md Yousuf Ali v the 48

State the court cautioned the police against misusing their arresting powers and

torture in the garb of police remand. In a PIL initiated in the context of a widely

condemned killing of an innocent university student through torture inflicted by some

members of the police, the High Court Division in BLAST and Others v Bangladesh and 49

Others (2003) handed down a ground-breaking judgment issuing directions and

guidelines with a view to stopping largely unchecked police brutalities and custodial

deaths. The court emphasised the need to bring existing legal inconsistencies into

conformity with the constitutional safeguards against torture and unlawful arrest, and

formulated certain strategies and polices to regulate the arresting power of the police

under widely-framed section 54 of the Criminal Procedure Code as well as to condition

the magistrates' power to remand an accused to the police. Unfortunately however, an

appeal against this rights-enhancive decision has since remained pending before the

Appellate Division.

Another noticeable area where the court followed justice-promoting interpretation was

that of women's rights. Clearly, paternalistic assumptions in judicial decisions are on the

decline now. On several occasions, the court has struck down gender-based

discriminatory actions and laws and has attempted to promote a substantive concept of 50 51

equality. In Shamima Sultana Seema v Bangladesh the High Court Division quashed

an administrative notification allocating differentiated functions and pay to women

commissioners of a city corporation elected from the reserved seats, calling for a 52

change in societal attitude towards women since mere law may not often prove enough.

Gender-sensitive judging prominently appeared in some criminal cases concerning

victims of rape, torture and murder. Considering rape as a deplorable violation of one's

right to life, the court advised that the violators should receive serious punishment so 53

that justice be done both to the victim and society.

31

In the post-democratic transition era, Bangladeshi judges became aware of their past 54

failings, a realisation that boosted their sense of activism for justice. Resultantly the

court in a series of cases stood in defence of constitutionalism by way of expanding the

judicial review power in ordinary and public interest litigations. Although the court still 55

feels shy to recognise the constant engagement with policy issues, judicial engagement 56

with policy matters or judicial policy suggestions in Bangladesh is not uncommon. For

example, governmental inactions including those in the sphere of foreign affairs are 57

becoming justiciable in abstract or concrete challenges.

To be brief, the post-1990 court has by and large remained alert to breaches of principles

of constitutionalism. In an instance of strategic activism, the court in Kudrat-E-Elahi 58

Panir v Bangladesh, concerning the abolition of a tier in the local government system,

the Appellate Division refused to give legal force to fundamental principles of state

policy. But, having been inspired by these fundamentals, the Appellate Division issued

certain directions asking the government, inter alia, to ensure elections to local 59

government units ensuring representation of women in particular. In some other

decisions, the court invoked the common law doctrine of public trust in its modernist

perspective to hold the government and its agencies to account. For example, in BLAST v 60

State (2008), a PIL, it directed the realisation within six months of a huge amount of

arrear telephone bills from some 427 members of the parliament, reinforced the view

that public functionaries are trustees of the people for whose interest they must act.

The most notable decision furthering the supremacy of the constitution is Bangladesh 61 th

Italian Marble Works Ltd v Bangladesh (2006) , conveniently referred to as the 5

Amendment Case. In this case, which in the last few years has been the centre of heated

debates regarding the proper extent the court can go to in a democracy, the High Court th

Division declared unconstitutional the 5 constitutional amendment that validated the

first martial law regime. For the court, the amendment was a grave legal wrong and

will so remain for all time to come. It held that martial law is unknown to the 62

constitution let alone being authority to enable changes to the constitution. There are

some notable weaknesses in the court's reasoning especially for its stand of sustaining th

the legality of some changes and of rejecting the other changes brought about by the 5

Amendment. Undeniably, this decision which has recently been endorsed by the 63

Appellate Division is a bold assertion against unconstitutional usurpation of state

powers. It seems to have compensated in some way the court's earlier failing to discard

martial law. As seen above, the court during extra-constitutional regimes mostly

surrendered its autonomy and judgment to the executive, a legacy that until this decision 64

made the court's post-1990 activism remain blurred. Most recently, the High Court th

Division has declared unconstitutional the 7 constitutional amendment that

legitimised the second martial law regime.

Independence of the judiciary: The Masdar Hossain Case

The post-1990 judicial activism has found spectacular expression in decisions

concerning the various aspects of independence of the judiciary. In these decisions the

court was seen optimally activist compared to its activity in other fields of law.

32

Apparently, it became extraordinarily self-conscious about its self-reputation and

status. A landmark decision of this genre was in the case of Secretary, Ministry of 65

Finance v Md. Masdar Hossain and Others, which stands as probably the most fine-

grained instance of judicial activism for constitutionalism. In Masdar Hossain, the

Appellate Division largely agreed with the High Court Division's judgment in the 66

original judicial review petition and issued some directives concerning judicial

independence for forthwith implementation by the executive.

Despite several constitutional provisions providing for the independence of the

judiciary as a whole, independence of the lower judiciary had long remained a matter of

serious concern. Magistrates exercising judicial functions were indeed officers of the

executive organ of the state, while judges in the judicial service, although they were not

members of the executive, used to be appointed and controlled almost single-handedly

by the administration. These issues of judicial independence came to be the central

theme of the judgment in this class-action lawsuit by some 223 judges initiated to

reclaim some financial benefits that the government withdrew. Speaking for the court,

Kamal J treated judicial independence as a basic pillar of the constitution and held that it 67

could not to be demolished, whittled down, curtailed or diminished in any manner.

In a well-argued judgment buttressed by comparative constitutional law decisions from 68

other comparable courts, the court found the executive and legislative organs to have

committed a constitutional deviation from obligations regarding independence of the 69

judiciary. It, therefore, set out to undertake a constitution-reinforcing role, ultimately

directing the government to take necessary steps towards (i-ii) framing Presidential

Rules regulating appointments of lower court judges and magistrates and their

posting, promotion, discipline, and pay or allowances; (iii-iv) establishing a Judicial

Service Commission to recommend recruitments to the judicial service and a Judicial 70

Pay Commission; and (v) ensuring the Supreme Court's financial autonomy.

Following its verdict the court took the role of post-decision monitoring, kept the case

open as a continuous mandamus for any consequential directive and through several

strategies made the government implement the above directives. The government

resorted to several dilatory practices to delay the full implementation of the judgment,

but ultimately fully complied with the decision. Since November 2007, by virtue of new

enactment of new law, the magistrates were separated from the executive organ of the

state and put under the regulation and governance of the Supreme Court.

The Masdar Hossain Case led the critics to raise questions about the propriety of the

court's intervention of the above type as well as about its policy and lawmaking roles. In

its very judgment, the court offered eloquent and thoughtful responses to these common

objections against judicial activism. In essence, the kind of activism the court exercised 71

in this case was not un-contextual, but rather was in defence of the constitution.

Public Interest Litigation

Public interest litigation that has now become firmly entrenched in the Bangladeshi

33

72

jurisprudence is the most noticeable area of judicial activism in Bangladesh,

accomplishing both practical achievements and normative social impacts. In Dr. 73

Mohiuddin Farooque v Bangladesh (hereafter the FAP 20 Case), the first PIL in its true

sense, an environmental organisation was held to have locus standi to challenge a flood

action project (FAP) on the grounds of violation of the surrounding people's rights as

well as of the principle of legality. This opening was based on the court's adoption of what

can be called an autochthonous style of constitutional interpretation based on the spirit

and dynamics of constitutional foundational values such as social justice and

democracy. There has since been a steady rise in litigations for the public good or

interest.

In PIL cases the court has so far been activated to achieve justice vis--vis a wide array of

issues. For example, the court has issued remedies preventing the release or import of

radio-active dried milk in order to protect the lives of children from being endangered, 74

protecting slum dwellers against unlawful eviction, and preserving the environment, 75

public parks or rivers, and public health and hygiene. In some other cases concerning a

mixed genre of political rights claims and greater constitutional principles, the court 76

zealously guarded judicial independence and sought to inculcate electoral political 77

culture, ensure grassroot-level participation in democracy, stop police brutalities,

prevent sexual harassment in work-places or educational institutions, check corruption

by state executives, and protect liberty and other fundamental rights of vulnerable

people.

Interestingly, environmental justice seems to have drawn the court's most intensive

attention, and judicial environmental activism has been one of the central features of the

Bangladeshi PIL jurisprudence. In a long series of cases, the court has pro-actively

indulged in exercises directed towards the protection of the environment, mostly by

issuing innovative remedies such as obliging the concerned government agency to make

rolling reports of progress or by binding the government with specific positive

obligations or framing obligatory guidelines. To take just a few more striking 78

examples, the court in Dr. Mohiuddin Farooque v Bangladesh issued a eight-point

directive to improve the conditions of air pollution in Dhaka, asking the government to

convert the polluting vehicles into natural gas-run environmentally friendly transports. 79

In Professor Nurul Islam and Others v Bangladesh the High Court Division imposed a

ban on advertisements of cigarettes and tobacco-related products in furtherance of right

to life of the people at large, leading to the enactment of a legislation. A most recent 80

action in Human Rights and Peace for Bangladesh v Bangladesh (2009) has

prompted a string of government actions, including evictions of river-side industries,

regarding the protection of four rivers surrounding the Dhaka metropolis that are

allegedly the most polluted rivers in the world.

PIL-based judicial activism in Bangladesh has partaken of two different but conjoined

features: rights-based activism and constitutionalism-inspired activism. Considered as

a tool to attain social justice most PILs in their early age sought to implement

socioeconomic rights such as environmental or labour rights via attempts to enforce

34

statutory legal duties and constitutional fundamental rights. However, although the

judges are increasingly extending the enforceable constitutional right to life to cover 81 82

newer rights as the right to safe drinking water or the right to a healthy environment,

judicial social rights activism in Bangladesh remains still rudimentary and lags well

behind activist instances particularly of the Indian Court that influenced the 83

Bangladeshi PIL most.

By contrast, alongside judicial vigilance in the traditional public interest rights

litigations, constitutionalism-inspired judicial activism seems to have increased

significantly in recent times. For example, in Ekushey Television Ltd v Dr. Chowdhury 84

Mahmood Hasan (ETV Case) and Engineer Mahmud-ul Islam v Govt. of Bangladesh 85

(Private Port Terminal Case) the court invalidated respectively a public license

granted to a private television operator and struck down a permission to a foreign

private company to construct container terminals at the Chittagong Port on the ground

of opaqueness and non-transparency in public decision-making. Accordingly, the court

in recent times voided a law that undermined the principle of governance through 86

elected representatives, directed the government to establish special courts in the 87

Chittagong Hill Tracts region for the protection of women and children, invalidated a 88

provision of mandatory death penalty, and required the police to submit to it

fortnightly reports of the investigation concerning the 2007 terrorist attacks that killed 89

many including two judges.

Also notably, PIL-based activism has been increasingly embracing legitimate exercises

in judicial lawmaking or policy-setting, a stance that is fed by imperatives of the

constitution.

This does not, however, lead to a conclusion that PIL-based judicial activism is free of

imperfections. The court's preparedness in PILs to be vigilant against executive

violation of the citizens' rights or against any injustice does not seem to be sufficiently 90

robust, coherent, and pragmatically policy-based. For example, the court has not yet

established the jurisprudence of public law compensation for gross constitutional

breaches or misfeasance in public offices. Nor has the court been able to develop a

cooperative mode of adjudication taking the public officials within implementation

processes. Despite limitations of judicial public interest activism, however, the PIL-tool

continues to help the willing and perceptive judges achieve goals of justice and

constitutionalism.

91

The 2007 Emergency, and Post-Emergency New Judicial Activism

On 11 January 2007 the then interim government in Bangladesh declared a state of

emergency, which effectively suspended the constitutional rights of the people and 92

clipped the protective role of the courts. These sweeping initiates threw the court into

challenges, dilemma and confusions. Resultantly, judicial aberrations followed, with

far-reaching implications for the agency of the court in which public confidence came to

be low.

35

Judicial decisions during the two-year-long Emergency show that while the Supreme

Court's High Court Division apparently asserted its authority vis--vis the overweening

government, the Appellate Division seems to have paid undue deference to the

executive.

Despite hindrances and prohibitions of the regime, ordinary citizens as well as legal

actors resorted to the instrumentality of legal actions in order to protect the

fundamental rights and ensure constitutionalism. This rights-consciousness and civic

assertiveness apparently reflected the people's changing perception about the judiciary

which the Supreme Court's public interest jurisprudence generated.

The Emergency foreclosed the possibility of public interest litigation on constitutional

rights grounds. Public-spirited citizens or interested politicians, however, invoked the

court's jurisdiction through PIL and ordinary litigations under the operative part of the

constitutional remedial clause. In these actions challenging the legality of several

actions by the government, the court's responses were a kind of mixed bag of assertions 93 94

and abdication. In Masood R. Sobhan v The Election Commission (2008) , for

example, the High Court Division employed a purposive interpretation of the

vonstitution's 90 days' timeframe for holding general elections after the dissolution of 95

the parliament. The court dismissed a constitutionality challenge to Election

Commission's deferral of general elections beyond this time limit, and observed that 96

government's pledge for holding elections by December 2008 was not unreasonable.

At odds with this pragmatic decisions are a number of decisions in which the Appellate

Division's encounter with sweeping executive interventions with the liberty of the

people and principles of constitutionalism is acutely deficient in upholding the 97

supremacy of the constitution. In Moyezuddin Sikder v State (2008) , for example, the

Appellate Division overruled the High Court Division's decision that its inherent power

and wider judicial authority to grant bail to the accused can not be foreclosed even by 98

Emergency laws.

99

In another high-profile case, Bangladesh v Sheikh Hasina, the Appellate Division

controversially upheld the retrospective operation of the Emergency Powers Rules 2007

affecting the trial of a criminal charge against a former Prime Minister for an alleged

offence that pre-dated the promulgation of emergency. In the original constitutional

challenge, the High Court Division found that the retrospective operation of the

Emergency Power Rules to conduct trial of pre-Emergency offences was incompatible

with the constitutional prohibition of ex post facto criminal laws and hence 100

unconstitutional. The High Court Division reasoned that any Emergency-law that 101

breaches inviolable fundamental rights is liable to be adjudged unlawful, a reasoning

that is premised on constitutional values. Encouragingly, by referring to the judicial

oath, it emphasized an extra duty to examine the constitutionality of executive actions 102

when citizens' rights are at stake even during emergency. Standing on a footing

radically different from that of the High Court Division, the Appellate Division adopted a

merely textual interpretation of the constitution, and found that the prohibition of ex 103

post facto laws concerned only conviction and not the trial process. Needless to say,

36

this interpretational approach is plainly not in terms with the judicial duty to do justice.

The strongest assertion of authority by the High Court Division came just few days

before the withdrawal of Emergency on 17 December 2008. In Advocate Sultana Kamal 104

and Others v Bangladesh, decided on 4 December 2008, the High Court Division

invalidated some provisions that precluded judicial review of executive actions under

any Emergency law and clipped the higher courts' power to grant bails and suspend 105

sentences or to hear appeals from lower courts' interim orders. Although the court 106

stopped short of striking down the 2007 Emergency as unconstitutional, it observed 107

that Emergency can not legally continue for an indefinite period and that it can not be

stripped off judicial review of emergency laws.

An appeal against the decision in Advocate Sultana Kamal is now awaiting the disposal

by the Appellate Division which in its interim order stayed the judgment's efficacy. Full-

fledged challenges to the constitutionality of 2007 Emergency went to the court only

when the Emergency was about to be withdrawn, which too are awaiting final 108

determination. In M. Asafuddowla and Others v Bangladesh (2008) , a PIL,

constitutional provisions enabling the president to declare a state of emergency

generally and particularly to postpone the enforcement of constitutional rights were 109

challenged. The court issued a rule calling for explanations from the government, but

it seems that this challenge will continue to remain unheard in the context of the

withdrawal of emergency.

The above shows while the High Court Division employed a dynamic interpretation of 110

the constitution in most if not all cases concerning the Emergency laws, the Appellate

Division followed a formalistic method of constitutional construction and sometimes

overly interfered with the former's autonomy. Appreciably however, in the wake of

return to democracy through 2008 elections the Appellate Division opened a little space

for liberal interpretations particularly in granting bails of the accused facing prolonged 111

detention. It remains unclear why the Appellate Division pursued a policy of not

interfering with the executive. Did it wanted to extend some measure of legitimacy to the

allegedly extra-constitutional emergency government and its purportedly noble mission

of institutionalising democracy, or simply become subjugated to external pressures.

Following the withdrawal of the Emergency and after the instalment of a new

democratic government in 2009, the Bangladeshi top judges seem to have regained their

constitutional agency in a bid to overcome the crisis of public confidence it incurred

during the 2007/08 Emergency. This post-Emergency period can to some extent be

likened with the post-Emergency period in India that gave birth to the most powerful

and activist court in the world. As noted above, the Supreme Court of Bangladesh in

recent times has been issuing activist judgments in the protection of fundamental rights

and the principles of constitutionalism with remedies of the kind not delivered before.

For example, as already mentioned, in this period the Appellate Division has confirmed th

the High Court Division's judgment striking down the 5 Amendment to the constitution 112

that constitutionalised a martial law regime. Unlike earlier suo motu interventions in

the area of criminal injustice, it has also acted on its own to protect human lives from

37

113

road accidents. To cite an example from the area of fundamental rights, it has issued

detailed guidelines to be followed by educational institutions and employers so as to 114

prevent and handle allegations of sexual harassment.

Conclusion

The aim of the paper has been to show the development of judicial activism in

Bangladesh. The earlier discussion shows that Bangladeshi judicial activism, which has

oscillated along with democratic nuances in the country, is increasingly becoming

intense particularly in the post-Emergency period. Unsurprisingly, this has attracted

sustained criticisms against judicial activism. These criticisms or accusations of over-

activism are not altogether without any substance. In few cases, the court's activism was

either non-pragmatic or deficient in reasoning.

The present and constant challenge for the Bangladeshi judges aspiring to enact justice

actively is to adopt a middle-ground between meek administration of justice and

unacceptable judicial overstepping. In breaking the middle-path of activism, they must

be guided by existing socio-political realities and the foundational values of the nation in

enforcing public accountability and reaching justice to the people.

As the above assessment reveals, on the whole, judicial activism in Bangladesh has not

turned out to be over-activism. Rather, one can see judicial under-activism in some

respects. For example, the court's failing to effectively stretch out the constitutional 115

rights to the activity of private actors does not match with its rights-based activism.

Also, there is still a long way for judicial public interest activism to travel.

Rizwanul Hoque is assistant professor in the Department of Law, University of Dhaka,

Bangladesh. For some arguments and analyses made in his paper the author has relied

on his unpublished PhD thesis: Hoque, Ridwanul. 2007. Judicial activism as a golden

mean: A critical study of evolving activist jurisprudence with particular reference to

Bangladesh. London: University of London, SOAS.

Endnotes

1. For an overview of these debates see, among many others, Michael Kirby, Judicial activism.

(London: Sweet & Maxwell, 2004); Bryce Dickson, ed., Judicial activism in common law

supreme courts (Oxford: OUP, 2007); Kent Roach, Supreme Court on trial: Judicial activism

or democratic dialogue (Toronto: Irwin, 2001).

2. This is what is known as counter-majoritarian argument against judicial activism, famously

developed in: Alexander Bickel, The least dangerous branch: The Supreme Court at the bar

of politics (Yale: Yale University Press, 1986). See also John Hart Ely, Democracy and

distrust: A theory of judicial review (Cambridge, MA: Harvard University Press, 1980).

3. In Khawaza Tariq Rahim v Federation of Pakistan PLD 1992 SC 646, Sajjad A. Shah J noted a

general trend of superior courts' activism in the advanced countries of the world. This

justificatory reference to Western jurisprudence perhaps symbolises a typically colonial

judicial mindset that everything good, including judicial activism, should flow from the West.

4. The author has here deliberately eschewed definitions of judicial activism, but have used the

concept to mean judicial functional responsibility to achieve socio-economic and political

38

justice for wider society beyond the bounds of a particular dispute, and thus to direct and influence

social and constitutional changes. Justice Bhagwati charted out three types of judicial

activism: i) judicial social activism meaning activism for social justice; ii) technical judicial

activism, i.e., exercise of freedom of judicial choices; and iii) juristic activism, i.e., creation of

new legal principles without looking at the purposes they serve. See P. N. Bhagwati, Judicial

activism and public interest litigation, Columbia Journal of Transnational Law 23 (1984-5):

561577, at 561. From the Western perspectives, Kmiec expounded five core meanings of

judicial activism, which are i) invalidation of the arguably constitutional actions of other

branches; ii) failure to adhere to precedent; iii) judicial legislation; iv) departures from

accepted interpretive methodology; and v) result-oriented judging. See Kennan D. Kmiec,

The origin and current meanings of judicial activism, California Law Review 92 (2004):

14411447. See also G. Jones, Proper judicial activism, Regent University Law Review 14

(2002): 141.

5. The literature on Bangladeshi judicial activism is quite scant. The first-ever figuring of the

term judicial activism was in a section of a 1988 article: Imtiaz Omar, Independence of the

judiciary and the role of the Bangladesh Supreme Court, Law and International Affairs 11 (1

& 2) (1988): 80106. An early relevant work on this is by Naim Ahmed who focused on public

interest litigation. See Naim Ahmed, Public interest litigation in Bangladesh: Constitutional

issues and remedies (Dhaka: BLAST, 1999). Judicial activism spanned only for two pages in

a 2003 book by a former Supreme Court judge. See Kazi Ebadul Hoque, Administration of

justice in Bangladesh (Dhaka: Asiatic Society of Bangladesh, 2003). On Bangladeshi judicial

activism, now see R. Hoque, Judicial activism as a golden mean, above note 1. See further A.

T. M. Afzal, I am not against judicial creativity, Dhaka Law Reports (DLR), Journal section

51 (1999): 4142; Afroza Begum, Judicial activism versus judicial restraint: Bangladesh's

experience with women's rights with reference to the Indian Supreme Court, Journal of

Judicial Administration 14 (2005): 220241 (arguing that judicial activism is inescapable to

accommodate women's contemporary needs); Ridwanul Hoque, Taking justice seriously:

Judicial public interest and constitutional activism in Bangladesh, Contemporary South

Asia 15 (4) (2006): 399422; and Ridwanl Hoque and Morshed M. Khan, Judicial activism

and Islamic family law: A socio-legal evaluation of recent trends in Bangladesh, Islamic Law

and Society 14 (2) (2007): 204239.

6. See the Presidential Proclamation of December 28, 1974, made under Article 141A of the

constitution that was introduced through the Constitution (Second Amendment) Act, 1973.

7. Throughout this chapter the term constitution has been used to refer to the Constitution of

the People's Republic of Bangladesh, adopted on November 4, 1972 and effective from

December 16, 1972.

8. See the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991).

9. The constitutional supremacy clause (Art. 7) categorically declares that any other law

inconsistent with the constitution shall be void, while Article 26 enjoins the state not to

legislate in derogation of fundamental rights and provides that any law inconsistent with

these rights shall be void.

10. See respectively, Article 44(1) and Article 102 (1) of the constitution.

11. Its other and the apex part is the Appellate Division, with only appellate power and the

advisory jurisdiction.

12. Without using the nomenclature writ, Art. 102 (2) allows five kinds of writs, mandamus,

prohibition, certiorari, quo warranto and habeas corpus, against state and local authorities.

Moreover, the Appellate Division of the Supreme Court has the power to issue directions and

orders to do complete justice in any pending case (Art. 104).

13. See article 4 of the High Court of Bangladesh Order, 1972.

14. Kutubuddin v Nurjahan (1973) 25 DLR (HCD) 21.

15. A. T. Mridha v The State (1973) 25 DLR (HCD) 335, 338.

39

16. (1973) 25 DLR (HCD) 335.

17. Ibid., 350 (referring to pre-constitution President's Order No. 50). The Appellate Division

reversed this decision on a narrow technical ground: Solicitor, Govt. of Bangladesh v A. T.

Mridha (1974) 26 DLR (AD) 17.

18. (1974) 26 DLR (AD) 44.

19. Ibid., 52 , per Sayem CJ.

20. Ibid., 5152.

21. This term was used by M. H. Rahman J in Anwar Hossain Chowdhury, below note 32, 180.

22. (1978) 30 DLR (AD) 207, 210. In Sultan Ahmed v Chief Election Commissioner (1978) 30

DLR (HCD) 291, 296, the martial law was termed as the Supreme law of the land.

23. See clause (g) of the Proclamation of Martial Law of 20 August 1975.

24. Earlier, the court in Abdus Shukoor Dada v The State (1976) 28 DLR 441 defined martial law

as a known concept of jurisprudence invoked for taking certain corrective measures which

are beyond the reach of normal laws.

25. See, e.g., the dissenting opinion by K M Sobhan J in State v Joynal Abedin (1980) 32 DLR

(AD) 110, arguing for the availability of judicial review when martial law courts were

improperly constituted or acted without jurisdiction or beyond their constituting legislation.

26. See the Special Powers Act 1974, Section 3.

27. See the leading case of Abdul Latif Mirza v Govt. of Bangladesh (1979) DLR (AD) 1.

28. (1980) 32 DLR (HCD) 142.

29. See also Lutfur Rahman v Election Commissioner (1975) 27 DLR (HCD) 278 (judicial

authority to issue interim orders in judicial review to prevent injustice cannot be absolutely

foreclosed).

30. For an almost similar early decision see Humayun Kabir v The State (1976) 28 DLR (HCD)

259.

31. For a good analysis see Sheikh H. R. Karzon and Abdullah A. Faruque, Martial law, judiciary

and judges: Towards an assessment of judicial interpretations, Bangladesh Journal of Law 3

(2) (1999): 181210.

32. 1989 BLD (Spl.) 1.

33. In reaching the decision, the court greatly relied on the famous Indian decision in

Kesavananda Bharati v State of Kerala (1973) 4 SCR 225 that first established in the

common law world the doctrine of inviolability of the basic structure of the constitution.

34. Note 32 above, per Ahmed and Chowdhury JJ, ibid., 143, 83.

35. See opinions of Ahmed Chowdhury and Rahman JJ, respectively at 83, 156157, and 174 in

Anwar Hossain Chowdhury, above note 32 (Afzal J dissenting).

36 Two majority judges, for example, took a highly controversial view that a constitutional

amendment is not a law within the meaning of Article 7(2) of the constitution, as noted in

note 9 above.

37. Anwar Hossain Chowdhury, above note 32, per Rahman, J., at 160.

38. For example, two scholars have loosely argued that by constitutional theory the court lacked th

power to invalidate the 8 Amendment: Imtiaz Omar and Zakir Hossain, Coup d' etat,

Constitution and legal continuity, Parts 1-2, Issue Nos. 207 & 208, Law & Our Rights, the

Daily Star, Dhaka, 17 and 28 September 2005.

39. Shahabuddin Ahmed J in Anwar Hossain Chowdhury, above note 32, at 157.

reservation of seats for women in the parliament is not

against basic structures).

41. See respectively, Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd. (2010) th

VI (B) ADC (Appellate Division Cases) 1 (declaring the 5 amendment unconstitutional); and

40. See respectively M. Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171 (introduction of

non-party caretaker government has not breached any basic structure but rather has

strengthened democracy, a basic pillar of the constitution), and Farida Akhter and Others v

Bangladesh (2007) 15 BLT (AD) 206 (

40

a recent High Court Division's decision of 26 August 2010 (Siddique Ahmed v Bangladesh, Writ th

Petition of 24 January 2010) declaring 7 constitutional amendment unconstitutional. On the

basic structure-compatibility of these amendments, see M. Rafiqul Islam, The seventh

amendment to the Constitution of Bangladesh: A constitutional appraisal, Political

Quarterly 58 (3) (1987):1229; and Sheikh H. R. Karzon and Abdullah A. Faruque, Martial

law regimes: Critically situating the validity of the fifth and seventh amendments,

Bangladesh Journal of Law 2(2) (1998): 152192.

42. See, e. g., Mohammed Ali v Bangladesh (2003) 23 BLD (HCD) 389, the only case awarding

public law damages against the police for unlawful searches.

43. On suo motu judicial intervention see Ridwanul Hoque, Suo motu jurisdiction as a tool of

activist judging: A survey of relevant issues and constructing a sensible defence, Chittagong

University Journal of Law 8 (2003): 131.

44. (2003) 55 DLR (HCD) 194.

45. (1997) 17 BLD (HCD) 344.

46. (1993) 45 DLR (HCD) 643.

47. See also BLAST v Bangladesh (2002) 7 BLC (HCD) 85 (a conviction passed by any court other

than the juvenile court in respect of a child is liable to be set aside).

48. (2002) 22 BLD (HCD) 231. See also Saifuzzaman v State 56 (2004) DLR (HCD) 324 warning

against police torture or third method degrees.

49. 23 BLD (2003) (HCD) 115.

50. See, e.g., Bangladesh Biman Corporation v Rabia Bashri Irene (2003) 55 DLR (AD) 132,

striking down the rule of different ages of retirement for flight stewards and stewardesses.

51. (2005) 57 DLR (HCD) 201.

52. Ibid., 212213 (interestingly, by reference to religious scripts, the court took a pedagogic role

to educate the government about its protective duty towards women).

53. See, e.g., Al Amin & Others v The State (1999) 19 BLD (HCD) 307, 317319. In some cases the

court set out to craft a women-friendly criminal justice system, suggesting, e.g., reduction of

the evidential threshold in rape cases in consideration of the relevant social factors: State v

Moslem (2003) 55 DLR (HCD) 116; State v Mir Hossain (2004) 56 DLR (HCD) 124.

54. See, e.g., Bangladesh Italian Marble Works Ltd, below note 61; Shahriar R. Khan v

Bangladesh (1998) 18 BLD (AD) 55, 78.

55. See e.g., Younus Mia v Ministry of Public Works (1993) 45 DLR (HCD) 498 (courts cannot

direct the government to implement a policy).

56. See e.g. Mostafa Kamal v Commissioner of Customs (1998) 18 BLD (HCD) 301, 308 (the

judgment suggesting a legal framework for fixing import tariffs was sent to the government

for consideration for framing rules).

57. In Abdul Gafur v Secretary, Ministry of Foreign Affairs (1997) 17 BLD (HCD) 453, the court

directed diplomatic assistance for the rescue of a girl-victim of an international abduction

from Kolkata.

58. (1992) 44 DLR (AD) 319.

59. In the same vein, in BLAST v Bangladesh (2008) 60 DLR (HCD) 234 (judgment 2 August

2005) the court declared the Village Government Act 2003 unconstitutional for providing for

selection rather than election of representatives to the village governments.

60. (2008) 60 DLR (HCD) 176.

61. (2006) BLT (Special) (HCD) 1 (judgment 29 August 2005).

62. For a note on this see Ridwanul Hoque, On coup d' etat, constitutionalism, and the need to

break the subtle bondage with alien legal thought: A reply to Omar and Hossain, Law & Our

Rights the Daily Star, Dhaka, October 29, 2005.

63. See Khondker Delwar Hossain, above note 41.

64. In some cases, e.g., the post-1990 court refused to review the legality of actions by past martial th th

law administrators on the unjustifiable ground that those were protected by the 7 or the 5

41

amendments to the constitution. See Abdur Rashid Sarker v Bangladesh (1996) 48 DLR (AD) 99;

Shah Mohammad v Secretary to the President (1996) 1 BLC (HCD) 8.

65. (2000) 52 DLR (AD) 82 (hereafter Masdar Hossain) (judgment 2 December 1999).

66. See Md. Masdar Hossain & Others v Secretary, Ministry of Finance & Others (1998) 18 BLD

(HCD) 558.

67. Masdar Hossain, above note 65,103.

68. The court relied on, e.g., Indian, Pakistani, and Canadian decisions: All Indian Judges'

Association v India (1993) 4 SCC 288; Walter Valente v The Queen (1985) 2 SCR 673;

Reference re Remuneration of the Judges of the Provincial Court of Prince Edward Island

(1997) 3 SCR 3.

69. Masdar Hossain, above note 65, at p. 108.

70. Ibid., 109.

71. The court (ibid., 160) reasoned that it can issue necessary directions to bring the parliament or

the executive back to the constitutional path when they breach the constitution, relied on the

Pakistani decision in Govt. of Sindh v Sharaf Faridi PLD 1994 SC 105 imposing positive

obligations on the state to separate the lower judiciary. It is interesting to note that the

Appellate Division followed strategic activism by not straightforwardly directing the

government to separate the judiciary from the executive organs of the state as per Article 22

of the constitution probably because of this mandate's judicial non-enforceability.

72. In Kazi Mukhlesur Rahman v Bangladesh, above note 18, which had a strong PILness, the

court missed an opportunity of being the pioneer in establishing PIL jurisprudence. Unlike

Indian judges, Bangladeshi judges had never been the vanguard of the PIL movement. Rather,

the activist lawyers needed to work hard to make the judiciary break away from the colonial

legal thinking and orthodox jurisprudential inhibitions. See for a negative decision:

Bangladesh Sangbadpatara Parishad v Bangladesh 43 (1993) DLR (AD) 126. On PIL

generally see Ahmed (1999), above note 5, and Hoque (2006), above note 5.

73. IX (1996) Bangladesh Supreme Court Report 27.

74. For some old cases see Kalam v Bangladesh (2001) 21 BLD (HCD) 446; Aleya Begum v

Bangladesh (2001) 53 DLR (HCD) 63.

75. See, e.g., M Salimullah v Govt of Bangladesh, 23 (2003) BLD (HCD) 58, RAJUK v Mohshinul

Islam 53 (2001) DLR (AD) 79.

76. M. Idrisur Rahman v Shahiduddin Ahmed (1999) 51 DLR (AD) 163.

77. Ziaur Rahman Khan v Bangladesh 49 (1997) DLR 491 (declaring timeframe for holding fresh

elections in the three local government bodies in the Chittagong Hill Tracts.)

78. (2003) 55 DLR (HCD) 613.

79. (2000) 52 DLR (HCD) 413.

80. (2009) 14 BLC (HCD) 759.

81. See Rabia Bhuiyan, MP v Secretary, Ministry of LGRD and Others (2007) 59 DLR (AD) 176.

82. In Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD) 438, 442 the court held:

the right to lifeincludes the enjoyment of pollution free water and air, improvement of

public healthand [a] life consistent with human dignity.

83. On cross-national influences in the development of PIL in South Asia, see Arun K.

Thiruvengadam, In pursuit of the common illumination of Our house: Trans-judicial

influence and the origins of PIL jurisprudence in South Asia, Indian Journal of

Constitutional Law (2008): 68103.

84. (2002) 54 DLR (AD) 130, affirming Chowdhury M. Hasan v Bangladesh (2002) 22 BLD

(HCD) 459.

85. (2003) 23 BLD (HCD) 80.

86. BLAST v Bangladesh (2008), above note 59.

87. BLAST v Secretary, Ministry of Law, Justice and Parliamentary Affairs (2009) 61 DLR

(HCD) 109 (judgment 24 February 2008).

42

88. BLAST v Bangladesh WP No. 8283/2005, challenging s. 6(2) of the Suppression of Violence

against Women and Children (Special Provisions) Act 1995 (later repealed) (judgment 2

March 2010).

89. Z. I. Khan Panna v Bangladesh WP No. 8621 of 2005.

90. This observation holds good in Ain o Salish Kendro (ASK) v Bangladesh (2007) 15 BLT

(HCD) 48 in which case the High Court Division held that restraining a prisoner in bar fetters

following the law is not unconstitutional. But see the path-breaking decision in BLAST v

Bangladesh (2003), above note 49.

91. Some analyses made in this section are based on my earlier work on the 2007 Emergency in

Bangladesh. See Ridwanul Hoque, The recent emergency and the politics of the judiciary in

Bangladesh, National University of Juridical Science Law Review 2 (2) (2007) 183204.

92. The Emergency Powers Ordinance 2007 and the Emergency Powers Rules 2007 curtailed

judicial powers significantly.

93. Although the right to enforce fundamental rights under Article 102(1) of the constitution had

been suspended, judicial review power concerning other issues of legality under Article

102(2) remained unaffected.

94. Writ Petition No. 709 of 2008 (judgment 22 May 2008).

95. See Article 123 (3) of the Bangladeshi Constitution that provides that the parliamentary

elections shall be held within 90 days of the dissolution of the parliament.

96. For similar observations, see also Advocate Sultana Kamal v Bangladesh (2009) 14 BLC

(HCD) 141, as in note 104 below.

97. (2008) 60 DLR (AD) 82.

98. Moyezuddin Sikder v State (2007) 59 DLR (HCD) 287, 297.

99. (2008) 60 DLR (AD) 90.

100. Id. See Article 35(1) of the constitution.

101. Ibid., at p. 142, para. 42 (referring to Article 26 of the constitution, noted in note 9 above.).

102. The court showed its readiness to exercise judicial vigilantism in times of extra-ordinary

political situations like Emergency. In the court's words (ibid., at paragraph 48), the duty to

defend the constitution gives the judges an additional duty to read and apply the provision

of the Constitution strictly when a citizen's rights are infringed.

103. (2008) 60 DLR (AD) 90, 100.

104. (2009) 14 BLC (HCD) 141.

105. The court invalidated section 5 of the Emergency Powers Ordinance 2007, and rules 11(3),

19Gha and 19Uma of the Emergency Power Rules 20007.

106. Interestingly, the petitioners did not challenge the constitutionality of the state of emergency

as such.

107. By this the court established, not so strongly though, that the president's satisfaction about

the existence of reasons for imposing and withdrawing emergency is subject to judicial

review. Compare Abdul Baqui Baluch v Pakistan (1968) 20 DLR (SC) 249, in which the

Pakistani Supreme Court held that once a proclamation of emergency had been validly issued

the question whether conditions for emergency ceased or whether it needed to be withdrawn

was not for the court to decide.

108. Writ Petition of 24 November 2008. Also see another earlier challenge, M. Saleem Ullah and

Others v Bangladesh (2008), Writ Petition No. 5033 of 2008.nd

109. Indeed, the petitioners challenged the Constitution (2 Amendment) Act 1973 that made

provisions for the state of emergency.

110. Apart from cases cited here, there are other good instances of judicial constitutionalism

activism during the Emergency. See, e.g., Pirjada Syed Shariatullah v Bangladesh (2009) 61

(DLR) (HCD) 647 holding that the President's ordinance-making power must conform to the

constitution.

43

111. Surprisingly, there was not even any dissenting opinion in the discussed cases of doubtful

logical correctness.

112. See Khondker Delwar Hossian, above note 65, and the High Court Division's recent decision th

invalidating the 7 Amendment, above note 41.

113. Government of Bangladesh v Ministry of Home Affairs and Others (2008) 16 BLT (HCD)

264 (directing to install speed governor in all vehicles as per Motor Vehicles Ordinance 1985).

114. BNWLA v Bangladesh (2009) 14 BLC (HCD) 694.

115. See, e. g. Anwar Hossain v Mainul Hosein (2006) 58 DLR (AD) 229, refusing to enforce

fundamental rights against private persons. This stands at odds with Article 102 (1) of the

constitution that empowers the High Court Division to enforce these rights against any

person.

44

Judicial Activism and the

Environment in India

Shibani Ghosh

1

s one of the first countries in the world to recognise environmental rights,

India has a vast and rich environmental jurisprudence. The Constitution of AIndia recognises the duty of the government to protect and improve the environment and safeguard forests and wildlife as one of the fundamental principles of

2

governance. It also places a duty on every citizen of the country to protect and improve 3

the natural environment. In the last four decades, the parliament and the state

legislatures have passed several legislations on environmental issuesprotection of

wildlife, prevention of water and air pollution, forest conservation, hazardous waste

management, protection of coastal areas, environment impact assessment of projects 4

and so on. However, despite the extensive black letter of the (environmental) law, it is

the Indian judiciary, and not the legislature, which has been credited for evolving

various types of environmental rights and delineating obligations on the state and the

citizens to protect the environment. Even the vast and complex structure of central and

state environmental ministries and pollution control boards across the country has,

more often than not, been mobilised out of its state of inertia by the judiciary.

In this process of evolution of environmental rights and obligations and the instances of

pushing and prodding governmental agencies into action, the Indian judiciary has often

been considered to be judicially activist. Its decisions have been hailed for expanding

the legal horizons and changing the parameters of justice. It has brought hope to the

vulnerable groups of people who have been victims of state and non-state apathy and 5

atrocities and for whom the judiciary was the last resort. But activist decisions have

also led to concerns that the judiciary is transgressing the boundaries which separate the 6

powers of the three branches of government. As a non-elected and democratically

unaccountable body, the judiciary cannot be allowed slip to into the role of a law- and 7

policy-maker or that of the executive.

Different conceptions of judicial activism exist and there are extensive debates in legal

literature about what constitutes judicial activism, and whether activist courts are over-8

stepping the powers which they draw from the constitution. Courts have been

considered to be judicially activist when they do not confine themselves to the

adjudication of legal conflicts, but venture out to make social policies, affecting many

more people and interests than had they confined themselves to the resolution of narrow 9

disputes before them. The phrase could be used to commend the judiciary or criticise it;

it could be used to describe a decision which is per se unconstitutional (as it lacks

45

10

jurisdiction) but it could also signal an activity to bring justice to the doorstep of people 11

particularly in areas not covered by any statue made by a legislature. An eminent Indian

jurist, S. P. Sathe, has noted:

People's understanding of judicial activism depends on their

conception of the proper role of a constitutional court in a democracy.

Those who conceive the role of a constitutional court narrowly, as

restricted to mere application of the pre-existing legal rules to the

given situation, tend to equate even a liberal or dynamic interpretation

of a statute with activism. Those who conceive a wider role for a

constitutional court, expecting it to both provide meaning to various

open textured expressions in a written constitution and apply new

meaning as required by the changing times, usually consider judicial 12

activism not as an aberration, but as a normal judicial function.

The courts through their decisions have changed the legal landscape of the country's

environmental regulation. This was possible, in large part, due to the rise of public 13

interest litigation (PILs) before the courts. As large sections of the Indian population

had no access to justice or were being denied justice, the Supreme Court of India in 1970s

started this new genre of litigation (which was soon adopted by the high courts). This

form of proceedings liberalised the rule of standing and allowed persons, who would

otherwise not have any standing before the court, to represent disadvantaged sections of 14

the society which are unable to fight for their legal rights. PILs can be brought before

the Supreme Court of India under Article 32 and before the high courts under Article 226

of the Constitution of India. Under Article 32, a person can approach the Supreme Court

if his/her fundamental right is violated. High courts can be approached under Article

226 for violation of fundamental and other rights. The Supreme Court and the high

courts have considerable discretion with respect to the types of orders they can pass 15

under Article 32 and Article 226. PIL proceedings are different from regular court

proceedingsthey can be initiated even by a letter to the court or be based on a news 16

item; many of the procedural requirements are done away with; the proceedings are

generally not adversarial, but more an exercise of cooperation and collaboration 17

between different stakeholders; the court often relies on the advice of court-appointed

expert committees and amicus curiae. The responses of the courts to the PILs have also

been very different and, at times, innovative. One of the responses has seen the court

issue orders in the nature of continuing mandamusthe court keeps the case under its

judicial oversight for several years and keeps issuing orders and directions suited to the 18

situation on the ground to the concerned government authorities.

Without entering the debate on the legitimacy of judicial activism, in the context of

environmental law, one can certainly identify some broad grounds based on which the

courts have been called judicially activist. It is because their decisions have either a)

created new law; b) interpreted rights and obligations where none were clearly defined;

c) made policy choices and directed executive action; or d) insisted on continually

monitoring the implementation of law/policy. Besides these grounds, some authors

46

have considered some of the retrogressive decisions of the courts to be judicial

activism. In these decisions, the courts go to great lengths to justify actions of the

government on policy grounds, instead of deciding the matter on established legal 19

principles.

a) Courts have created new law

Although law-making lies essentially in the domain of the legislative branch of the

government, in the course of deciding environmental matters before it, the Supreme

Court of India has on certain occasions resorted to introducing new legal principles.

These legal principles have subsequently been upheld to be part of the Indian legal

system and have become the law of the land.

One of the first instances in which the court adopted this law-making avatar was in

1986. The court, while deciding a PIL which claimed compensation for victims of an

oleum gas leak and demanded the closure of certain hazardous industries in Delhi,

introduced a new principle of liabilityabsolute liabilityin Indian law. The court held

that the rule laid down in Rylands v. Fletcher in 1866 was no longer relevant as the law

had to evolve with changing times. It decided that there was a need for a new legal

principle and held that an enterprise which is engaged in a hazardous or inherently

dangerous industry which poses a potential threat to the health and safety of the persons

working in the factory and residing in the surrounding areas owes an absolute and non-

delegable duty to the community to ensure that no harm results to anyone on account of 20

any hazardous or inherently dangerous nature of the activity which it has undertaken.

If any harm results on account of such an activity the enterprise is held to be absolutely

liable and responsible for the compensation for such harm; it is no defence for the

enterprise to say that it had taken all reasonable care and that the harm occurred without 21

any negligence on its part. Subsequently, the court held this rule of liability to be a 22

binding legal principle.

In 1995, a petitioner approached the Supreme Court directing its attention towards the

inaction of the state government of Tamil Nadu on the issue of forest conservation and

implementation of the Forest (Conservation) Act, 1980. This petition became the basis 23

for the court's continued involvement in forest conservation across the country. An

interim order passed by the court in 1996 became one of the most significant orders in 24

the history of environmental law because of the subsequent legal action it led to. The

court concluded that there appeared to be some confusion with regard to the ambit of the

Act and the definition of forest and therefore, it laid down a definition of forest which did

not exist in the Act and which had a much broader scope than the existing understanding 25

of forest. This became the legal definition of forest for the purposes of implementation

of the Act as well as the subsequent orders of the court.

The other significant contribution of the judiciary to environmental jurisprudence is the

declaration that certain principles enunciated in international environmental legal

instruments are part of the Indian municipal law. Several decisions of the Supreme

Court and the high courts since the 1990s have been based on or have referred to the

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26 27

precautionary principle, principle of sustainable development and the principles of 28

inter-generation equity. These principles had not found mention in any Indian

legislation. But courts have concluded that these are part of the Indian law. It was only in

2010 that the parliament included the principle of sustainable development and

precautionary principle in a statutethe National Green Tribunal Act 2010. Section 20

of this Act, makes these two principles, along with the Polluter Pays Principle, the

guiding principles for the tribunal when it is passing an order, decision or award.

b) Courts have interpreted earlier undefined rights and obligations

The Constitution of India recognises certain fundamental rights which cannot be

abrogated by any law or administrative action. The right to life and personal liberty

contained in Article 21 is one such right. The Supreme Court of India has liberally

interpreted this right to life and held that it includes other rights such as the right to live 29 30 31

with human dignity, the right to livelihood, the right to health and medical care and 32

the right to education. Adopting a similarly expansive approach to interpretation, the 33

Supreme Court has held that there is a fundamental right to healthy environment and 34

pollution-free air and water. While interpreting these rights, the courts have drawn 35

support from Articles 47, 48A and 51A (g) of the constitution.

India has enacted several environmental legislations such as the Water (Prevention and

Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981

and the Environment (Protection) Act, 1986. These legislations, inter alia, put in place

processes to analyse the impact of any activity on the environment; lay down norms and

criteria to reduce the adverse impact of human activity on the environment; and create

institutions to monitor the activities of industries and redress grievances. Many cases

brought before the courts highlight the failure of the states to implement provisions of

these legislations. The courts have generally deliberately interpreted provisions to give a

pro-environment decision. In a series of decisions in 2009 and 2010, the Delhi High

Court has clarified the law under the Environment Impact Assessment Notification,

particularly with regard to public consultation and decisiom-making of the 36

government. In all these cases, the courts purposively interpreted the law to make the

environmental decision-making more participatory and to ensure that the basic tenets

of administrative law are not ignored by environmental decision makers.

c) Courts have made policy choices and directed executive action

Policy making and implementation lies in the domain of the executive. However, when

the executive does not formulate or amend policy to suitably address legitimate

demands of the people or when it fails to discharge its statutory obligations, the judiciary

has stepped in by increasing the extent of review of executive (in)action. In such cases,

the courts i) direct the executive to formulate appropriate policy to respond to the need

of the hour; ii) direct the executive to discharge its obligations in a time bound manner;

or c) make a policy choice for the executive and direct the executive to implement the

same.

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37

In M.C. Mehta v. Union of India, the Supreme Court directed the relocation of 550

polluting tanneries then situated in four areas in the city of Kolkata in West Bengal. In

this case, the court had given several directions to the state government since 1993 but

the government had made no effort to implement those directions. In its final order the

court gave the government eight weeks time to comply with the order of the court and

relocate the tanneries in an alternative area outside the city.

A February 2009 order of the Delhi High Court strongly criticised the government for

not taking action to fully constitute the National Environment Appellate Authority 38

(NEAA). In 2005, the court had disposed off a petition directing the government to

make the required appointments in the authority in 45 days but the government did

nothing for four years. The service conditions of the chairperson and the members of the

authority as decided by the executive were such that no eligible candidate was accepting

the positions. But the executive was taking no action to change the conditions which

were inexplicably different (lower) than those for other regulatory authorities. The court

held that it had no option but to hold that the service conditions stood amended by the

order of the court and then direct the government to offer the positions to eligible 39

persons.

Two decisions of the Supreme Court of India which have been widely discussed for the

extent to which they arm-twist the government are worth a mention here. The first one 40

is the Delhi Vehicular Pollution case. The pollution in Delhi due to vehicular emissions

had reached dangerously high levels and the government was not taking action. The

Supreme Court was approached by a civil society organisation to intervene. The court

not only directed the Delhi government to take action but also specified the

technological solution that the Delhi government had to implement in a timely manner.

All public transport vehicles were to start using compressed natural gas (CNG) as fuel

instead of diesel in accordance with the time-table stipulated by the court. While most

commentators recognised the need for the court to intervene given the state of Delhi's

air, the others asked whether it was right for the court to throw its weight behind a 41

particular technical solution to the problem.

42

The second decision is In re: Networking of rivers in which the court directed the

government to undertake inter-linking of rivers across the country by transferring water

from water surplus basins to water deficit basins. Expert agencies estimated that more

than 40 years were required to complete the link projects. Despite there being no clear 43

evidence that inter-linking of rivers was scientifically a good idea, the court directed the

government to ensure that the link projects are completed within a reasonable time of 44

not more than ten years. Even proponents of judicial activism in the realm of

environmental law might be sceptical of such a judicial edict in a context of a problem of

such immense social, economic, ecological, technical and political complexity. In 2009,

the Minister of State for Environment and Forests Jairam Ramesh called the project a 45

human-ecological-economic disaster. This certainly holds a cautionary tale for the

judiciary against hasty and ill-informed intervention in the exercise of complex

executive functions.

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d) Courts have insisted on monitoring implementation of law/policy

In some cases, where the executive has displayed a very poor record of implementation

of its statutory obligations, the Supreme Court has adopted the monitor avatar.

Showing little faith in the executive, the court hears these cases regularly, assumes some

of the powers of the executive and monitors the actions taken by the executive closely. In

the Godavarman case, the Supreme Court has been issuing orders since 1995 on the 46

issue of forest conservation. As per the provisions of the Forest (Conservation) Act,

1980, any diversion of forest land for non-forestry purposes by state governments

requires the approval of the central government. But as the central government failed to

do its job properly and the state government took little or no interest in forest

conservation, the Supreme Court assumed this responsibility through a series of 47

decisions given in the Godavarman case. Forests can no longer be diverted for non-

forestry purposes without the final approval of the Supreme Court with the central

government playing only a recommendatory role.

In the last three decades most major developments in the field of environmental

governance in India have been as a result of the judiciary's intervention. But in the past

year, there have been certain significant events and developments relating to

environment protection which are attributable to the other two branches of the

government.

The parliament passed the National Green Tribunal Act, 2010 and it has come into force

in June 2010. This tribunal is in the process of being constituted and it will replace the

NEAA. It is being set up to promote effective and efficacious disposal of environmental

cases and it would have jurisdiction over all civil cases which involve a substantial

question relating to the environment, including enforcement of any legal right relating 48

to the environment. The tribunal can award relief and compensation to persons who

have been victims of pollution and environmental damage including any accident due to

the handling of hazardous wastes. It can also award restitution of property or direct

restitution of the damaged environment. The panel is supposed to be composed of

judicial and technical members with experience in science, administration, and so on.

While there are apprehensions based on past experiences about the working of this 49

tribunal, the tribunal's wider jurisdiction and powers and the conviction shown by the

Ministry of Environment and Forests headed by minister of state, Jairam Ramesh,

might make a difference. It is also hoped that a well functioning specialised tribunal

would not only improve environmental decision-making processes but also act as

deterrent to violations of environmental norms.

In recent months the executive has taken some significant proactive measures towards

environment protection. These measures are not, in a sense, extra-ordinary. It is

evidently the obligation of the executive branch of the government to take adequate

measures to protect the environment and enforce the environment laws of the country.

What perhaps makes these measures significant isfirst, that the executive has

undertaken these measures independent of the judiciary and second, that they appear to

be at least partially influenced by vocal public protest and actions of civil society

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organisations.

In August 2010, the central government issued a moratorium against new projects in

two districts of Maharashtra. According to the office memorandum issued, this

moratorium was issued in response to the representations expressing concern relating

to the environmental impacts and ecological degradation due to large number of 50

projects being proposed in the region as well as the projects under implementation.

The government has also withdrawn its forest clearance for bauxite mining in the

Niyamgiri Hills. The decision came after a committee constituted by the central

government concluded that the forest rights of the tribals in the area had not been settled

under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of 51

Forest Rights) Act, 2006. The decision came two years after the Supreme Court gave its

approval to the same project despite its own expert committee recommending against 52

it.

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Anti-dam movements in India have met with little success in the courts. But a recent

decision of the government has come as a pleasant surprise for project-affected persons

and activists across the country. Several dams have been constructed and more are

proposed to be constructed on the Ganga River as part of hydro-electric power projects.

Anti-dam protestors have been petitioning against these dams for many years as the

river is not only of great ecological value but holds a very important place in the Hindu

religion and faith and blocking its flow has severe adverse impacts on the river. One such

project which has faced constant public opposition is the Loharinag Pala Hydel Project.

The environment clearance granted to the project was challenged in the NEAA in 2005

which dismissed the appeal. The matter then went to the high court which directed the

NEAA to reconsider the appeal. The NEAA once again dismissed the appeal and the case

was taken up at the high court of Uttarakhand. As the legal possibilities to challenge were

not bearing any fruit, the activists intensified their protest. In August 2010, the

government finally decided to stop the Loharinag Pala Project as well as two other

projects in Uttarakhand. It has al

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