[Reader-list] RTF (Right to Food) Articles - 8
Rakesh Iyer
rakesh.rnbdj at gmail.com
Fri Aug 7 22:22:09 IST 2009
Online edition of India's National Newspaper
Friday, Dec 19, 2003 Group Publications Business Line The Sportstar Frontline
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* Supreme Court and the common man *
By K.K. Venugopal
* The Supreme Court breathed life into Article 21 of the Constitution by
expanding the meaning of the words "right to life" as not mere animal
existence, but as life with dignity. *
DOES A day go past without our reading in the newspapers about the role
that the Supreme Court plays in every aspect of the life of the country?
Many lawyers, and perhaps judges, would admit an objective analysis would
show most often that the Supreme Court would be encroaching upon the areas
reserved by the Constitution for the legislative and executive wings of the
state. But what is to be noted is that intervention in these areas by the
Supreme Court has been compelled by the inaction, apathy and the
indifference of the Executive and the Legislature. Though today the
Executive and the Legislature do not protest against such encroachment, that
was not the case in the first three decades of the working of the
Constitution of India.
The first three decades were a time of conflict between the Executive and
the Legislature on the one hand, and the Judiciary on the other, a series of
confrontations arising by reason of the Supreme Court's interpretation of
various pieces of legislation, including some relating to land reforms. The
last straw on the camel's back, as it were, was the Supreme Court judgment
in the Kesavananda Bharati case, arising from Kerala, where it denied to
Parliament the power to amend the Constitution if such amendments were to
affect the basic structure or the foundation on which the Constitution
rested. Matters came to a head during the Emergency when the then Union Law
Minister, H.R. Gokhale, in a speech reminiscent of F.D. Roosevelt's radio
broadcast to the nation after his New Deal Legislation had been struck down
by the U.S. Supreme Court, said:
"An atmosphere of confrontation was sought to be created by those whose duty
it was to see that they did not encroach upon the field which did not
legitimately belong to them. Nothing should be left undone now to ensure
that such a situation did not recur. If even after the amendment (that is,
the 42nd amendment to the Constitution) confrontation continues, then I
think it will be a bad day for the Judiciary."
And again:
"We are trying to save them from the temptation to intrude into powers which
do not belong to them. What we are doing today is not to save the people
from the judges but really enabling the judges to save them from
themselves."
The Emergency declared in 1975, and its aftermath, brought about a sea
change in the attitude of the Congress Government to the Judiciary, and the
Supreme Court in particular. It is only due to the lessons learnt from the
Emergency that a restrained and subdued Government that came back to power
in February 1980, decided that it was no more prudent and wise to continue
such confrontation with the Judiciary.
The post-1980 Court embarked upon a path of judicial activism unparalleled
in the history of any modern democracy. Activists, lawyers and public
interest groups invoked its jurisdiction, which was exercised, untrammelled
by the limitations that applied to the High Courts. The Supreme Court
identified Article 142 of the Constitution and its inherent power as an
unlimited source of power, a veritable Kamadhenu, on which it could draw for
whatever the judges felt were the demands of justice.
The Court compelled obedience to its will through its power of contempt
drawn from its inherent power as a court of record, which it held was not
subject to the limitations and restrictions in the law passed by Parliament,
namely, the Contempt of Courts Act, 1971. In seeking to aid the poor, the
illiterate and the disadvantaged sections of society, it did away with the
existing cumbersome procedures, as long as public interest was subserved.
With its newly developed craftsmanship it was able to achieve goals that the
Government was unable to or unwilling to achieve. The Supreme Court
succeeded in the space of a year where the Government had failed in the span
of a decade. As a result of its activism, in the realm of the right to life
and liberty, it embarked upon ensuring the rights of prisoners and rescuing
them from the barbaric prison rules, which prevailed during the British
colonial rule. The names of Hussainara Khatoon, Sunil Batra, Sheila Barse
and many others, would all bring tears to the eyes of people who believed
that it was part of their fate, ordained by the gods, to suffer at the hands
of the Government and its public servants. A whole new catena of rights was
also read into Article 21, which embodies the right to life and liberty.
These, in various decisions, have been held to include the right to legal
aid, right to go abroad, right to reputation, right to shelter, right to
privacy, right against sexual harassment of women, right to education and
the right to a clean and healthy environment.
The Supreme Court, without being concerned any more about the political
wing of the state seeking to fetter its powers, and without fearing any more
confrontation with the Executive and the Legislature, expanded its area of
adjudication to cover every conceivable aspect of human enterprise in the
country. It dealt with pollution in the Ganga, guidelines for adoption of
Indian children by foreigners, forced prostitution of girls and Devadasis
and Jogins, the extreme poverty and starvation in Kalahandi, the elimination
of injurious drugs and maintenance of approved standards in drugs,
management of mental hospitals, employment of children in match factories,
police `encounters' causing loss of life, x-ray hazards to public sector
employees and numerous other areas of concern to the country. No wonder a
former Chief Justice of India once described the Supreme Court as the most
powerful court in existence in any democracy in the world.
If you ask me whether many of the orders issued by the Supreme Court were
within its jurisdiction or competence, I would hesitate to answer in the
affirmative, but "we the people" will not question the legitimacy of the
Supreme Court and its orders because it has used all the powers at its
command to ensure that the fundamental rights are enforced and the mandate
of the Constitution is implemented.
The writ of the Supreme Court runs through every aspect of life and human
endeavour. In Hussainara Khatoon's case, it found to its horror that
thousands of under-trials were incarcerated for a far longer period than the
maximum sentence which could have been imposed on them if they had been
found guilty of the offence with which they were charged. This happened
because of the huge backlog in the courts, as a result of which cases were
taking five to eight years for disposal in the trial courts. By a single
stroke of pen, the Supreme Court directed the release of these thousands of
prisoners.
Article 21 of the Constitution declares that no person shall be deprived of
his life or personal liberty except according to the procedure established
by law. The Supreme Court breathed life into these words by expanding the
meaning of the words "right to life" as not mere animal existence, but as
life with human dignity, with all faculties intact, a roof over one's head
and the basic right to food and employment. Having held so, it started
expanding this concept so as to include the right to privacy, right to go
abroad, right to legal aid, right to medical assistance, right to shelter,
right to speedy trial, right to pollution-free water and air, right to a
reasonable residence, right to food, clothing and a decent environment and
even protection of the cultural heritage of the people.
In Unnikrishnan's case, the Supreme Court held that the right to free
education till the age of 14 is a fundamental right. Recently, in the
Islamic Academy of Education's case, the Court declared that admission to
professional colleges — medical, engineering and others has to be on merit
and the fees charged have to be reasonable even if run by private
institutions. In Vishaka's case, the Court issued guidelines and directed
the establishment of mechanisms to address sexual harassment of women at
work place.
A resurgent Supreme Court today entertains public interest litigation from
every nook and corner of the country, including complaints of deprivation of
human rights and basic requirements. The potent weapon of PIL has to be used
with circumspection and craftsmanship.
Today, we can rest content with the conviction that in the hour of need
every person, irrespective of his status, wealth or education, can approach
the courts, and in particular, the Supreme Court when his rights are
violated, and that the Supreme Court would be ever happy and willing to
extend its arms to ensure that the Constitution and the rights enshrined
therein are implemented in the most vigorous manner.
*(Excerpted from the Justice Subramonian Potti Memorial Lecture delivered
recently by the writer in New Delhi.) *
* *
* *
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