INTRODUCTION:
A Suo Moto cognizance is a Latin term which is
defined as measures taken by a government agency, court, or other authority on
their own discernment. When the court gets the information about the violation
of the rights of humans or breach of duty through media or by a third party,
then Suo Moto Cognizance is taken by the Court. The reason behind Suo Moto
cognizance by the court is to broaden the reach of justice to that person who
is not able to access the court for some reason.
The term PIL was introduced by Justice P.N.
Bhagwati. Article 32 and Article 226 of the Indian constitution impute down the provisions for filing Public
Interest Litigation (PIL) in Supreme Court and High Court respectively. In this
way, power is given to the courts to initiate legal action on their cognizance
of matters when it comes to the violation of rights.
Under Article 131 of the Indian constitution,
Suo Moto Cognizance of the Supreme Court is given. Article 131 of the Indian constitution endows
the Supreme Court with Original Jurisdiction over any discourse arising between
the states or between center and state. This article gives power to the Supreme
Court to initiate cases directly in the highest court of the country without
going through the lower court or reviewing the judgment of lower courts. Suo Moto cognizance by Indian courts is a
reflection of Judicial Activism. To initiate the Suo Moto cognizance, the
prior consent of the Attorney General is not required.
WHAT IS JUDICIAL ACTIVISM?
There is an active role of the Judiciary in
upholding the constitutional values and ethics under the constitution. Judicial
Activism is a term which states that the decree of a court is based on
political and personal prudence of the judges based on the issues before the
court. It decided on the court ruling based on personal or political factors
rather than on current or existing legislation. In the words of Black’s
Law Dictionary, Judicial Activism is the conviction of judicial pledges
whereby judges give their personal views about public policy based on other
factors to escort their resolution.
The
concept of Judicial Activism was yielded through the procedure of Judicial
Review which can be followed from the unwritten constitution of Britain during
the Period of Stuart (1603-1688). For the first time in the year 1610, the
power of Judicial review was recognized through the activism of Justice Coke.
Only the Supreme Court and the High Court have the power of Judicial Activism,
to declare the regulations unconstitutional and null and void if they breach or
any clause is incompetent.
A new meaning is given by the court to the
provisions to action the switching social or economic conditions or broadening
the rights of an Individual is an activist court.
~ SP
Sathe
There can be pros and cons of Judicial Activism:
·
The
decision of judges becomes a standard for deciding other cases. (Cons)
·
Judicial
Activism gives power to the judges to use their own prudence in cases where
laws failed. (Pros)
·
Any laws
can be overridden by the judges that clearly indicate the violation of the
constitution. (cons)
·
Judicial
Activism gives the speedy resolution where the legislature stuck in the issue
of majority. (Pros)
There
are some of the landmark judgments related to Judicial Activism:
1. In Hussainara Khatoon
V State of Bihar, a writ petition is filed under article 21 of the Indian
Constitution. It was accepted by the apex court and it was held that the Right
to a speedy trial is a Fundamental Right.
2. In Sunil Batra V Delhi Administration, Epistolary Jurisdiction was exercised by the
court and it was held that the technicalities cannot stop the court from
securing the civil liberties of the individuals.
JUDICIAL
ACTIVISM OR JUDICIAL ADVENTURISM:
There is a very small gap between Judicial Activism and Judicial
Adventurism. Judicial Activism is considered as a positive sign in highlighting
and curing the executive but overreach into the executive domain is
contemplated as an intrusion into the proper working of democracy.
There are many cases of Judicial Adventurism in our country
which include the bolting of unaccredited commercial operations in Delhi. [[i]] The Judgment given by the Supreme Court in which the state
legislative assembly was deliquesced by the presidential proclamation is
subject to the judicial proclamation. [[ii]] Intervention in the educational policies of the government such
as the TMA Pai Foundation case. [[iii]]
In this pandemic, an order was given by Supreme Court to the
private laboratories not to charge the COVID-19 test that has sparked a parley
whether it is a case of Judicial Overreach. [[iv]] Under the Essential Commodity Act, powers are given to the
government to regulate the prices of testing done by private labs.
SUO MOTO
INTERVENTION:
During this Pandemic, there are increments within the cases of PIL filed by
the people within the Supreme
Court and various high courts under their jurisdiction. Recently in many
instances, Suo Moto Cognizance is taken by the Indian Judiciary. A number of which are as follows:
·
During COVID-19, Suo
Moto cognizance was taken by the Supreme Court after hearing a letter-petition
written by Member of Parliament Smt. Mahua Moitra about migrant workers and
their conditions.[[v]]
·
Suo Moto was taken by
the Apex court for the protection of children's homes across the country. [[vi]]
·
The Apex Court has taken Suo Moto Cognizance
of overcrowding of the prisons across the country. [[vii]]
The High Courts of the Country has also taken Suo Moto
Cognizance in a number of
instances for providing justice to the
general public at large.
·
Recently, Suo Moto Cognizance is taken by the
Gujarat tribunal on
the worsening of COVID-19 situations like shortage of beds, oxygen cylinders, medical facilities.
·
The supreme court of Andhra Pradesh has taken Suo Moto
Cognizance on the Vizag Gas Leak incident. National Green Tribunal, New Delhi,
and National Human Rights Commission, Indian capital have also taken separate Suo Moto cognizance
of this painful incident and have formed committees to enquire into the matter
and file their report.[[viii]]
CONCLUSION:
There is a limited distinction between activism
and overreach. Sometimes, in the operation of Judicial Activism, we see a lot
of intervention of Judiciary and give justice on the basis of their personal
belief. The primary function of the Judiciary is to interpret the laws but
rather than interpreting them, they start doing the work of legislature i.e.
making the laws, issuing guidelines and direction. There arises a conflict
between the legislature and judiciary because of Judicial Overreach due to
which the legislature becomes inactive or less competent. Judicial Overreach
kills the separation of powers on which the democracy is based.
The difference between Judicial Activism and
Judicial Adventurism is important for the smooth functioning of a constitutional
democracy with the separation of powers as its main attribute and supremacy of
the constitution. The judiciary in many instances faces censure for
under-reacting and this needs to be stabilized so that the people can get
justice without any difficulty and also can increase their faith in three
pillars.
[[i]] M.C. Mehta
Versus Union of India [Writ Petition (Civil) No.4677 of 1985]
[[iii]]
T.M.A. Pai
Foundation Versus State of Karnataka [Writ Petition (Civil) No.317 of 1993]
[[iv]]
Shashank Deo Sudhi versus Union of India & Ors.
[Writ Petition (Civil) Diary No.10816 of 2020]
[[vi]]
IN RE CONTAGION OF
COVID 19 VIRUS IN CHILDREN PROTECTION HOMES
[Suo Moto Writ Petition (Civil) No.4 of 2020]
[[vii]]
IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS
[Suo Moto Writ Petition (Civil) No.1 of 2020]
[[viii]] IN RE. POISONOUS GAS LEAKAGE IN VISAKHAPATNAM [Suo Motu WP (PIL) No.112 of 2020
REFERNCES:
https://www.drishtiias.com/daily-updates/daily-news-analysis/contempt-of-court-3
https://www.drishtiias.com/daily-updates/daily-news-editorials/when-judges-legislate
https://www.thehindu.com/news/national/other-states/gujarat-high-court-takes-suo-motu-cognisance-of-covid-19-upsurge-in-state/article34297158.ece
AUTHORED BY: PALAK NIGAM