TEACHERS DESERVE GRATUITY

Gratuity Act to be amended urgently to plug the loop holes

(By Advocate Gaurav Kumar. New Delhi)

The Supreme Court judgment dated 13'" January, 2004 in Ahmedabad Primary Teachers' Association v. Administrative Officer & Ors. (2004 (1) KLT470 (SC)=2004 LLR 97 (SC)) holding that a teacher cannot be classified as 'employee' under the Act since a trained teacher is not described in industrial field or service as a skilled employee. This ruling has shocked the teaching community and surprised others. The Court has based its judgment on a reading of the Payment of Gratuity Act, 1972 as it stands now that such adjectives, generally, is used for an employee doing manual ortechnical work. Similarly, the words "semi-skilled and unskilled" are not understood in educational establishments as describing the nature of job of untrained . teachers. The Bench added that even if teachers do some administrative work occasionally as part of their duty, they don't carry out the job in managerial or administrative capacity.

The Bench, however, observed that there are already,           Neither celebration of Teachers Day annually,

in several States, separate Statutes, Rules and                         nor any number of accolades, awards or

Regulations granting gratuity benefits to teachers in             acclamation of the teachers, that they are

educational institutions which are 'more or less'                    missionaries in the noble cause of education,

beneficial than the gratuity benefit provided under                  would take place of bread and butter for them.

the Act. But this will also not solve the problem. For             Howsoever high sounding showers of praise for

instance, a reference is made to S.10 of the Delhi                 their essential services to the society, after

School Education Act, 1973 inter alia providing that              retirement they need gratuity more than the

the scales of pay and allowances, medical facilities              certificates and the wordy-homage to their work

, pension, gratuity, provident fund and other prescribed          which cannot solve their post-retirement

benefits of the employees* of a recognised private school      problems. Therefore, what they need first is the

shall not be less than those of the employees of the             gratuity to buy some food for their survival.

corresponding status in school run by the appropriate                                 Hon'ble Justice R.J. Kochar

authority......                                                                                                     Bombay High Court

The words 'corresponding status' refer e.g. appropriate authority to those teachers who are employed in the Government schools. Their gratuity under the captions 'Service Gratuity' and 'Retirement/Death Gratuity' is regulated by Rr.49 and 50 of CCS (Pension) Rules, 1972.

The above rules No.49 and 50 are extracted from the Central Civil Services Pension Rules, 1972 and its Cl.(d) categorically excludes the persons who are entitled to a Contributory Provident Fund. Since the teachers are also covered by the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 which was extended upon the Schools w.e.f. 1982, this may lead to further complications. While applying the strict principles of interpretation, the teachers as covered under the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 cannot claim gratuity as of right even on their retirement what to speak on resignation as provided under the Payment of Gratuity Act.

In view of the above, it becomes imperative that the Law Ministry must get down to the job of drafting an amendment that the teachers should be covered by the Act. No doubt, "teaching" is a noble profession. But when such a huge population requires education, it should be considered as a profession that needs high quality. Compared to other professions, teachers in India are underpaid specifically at the school level. Education is a progressive discovery of ignorance and when you educate a woman, the whole family is uplifted. Thus, to encourage imparting of gratuity, education, on which progress of a nation rests, there is an urgent need to amend the Payment of Gratuity Act, to accommodate teachers for payment of gratuity. On the conclusion of the judgment, the Bench in the judgment that "it is for legislature to take cognizance of the situation of such teachers in various establishments where gratuity benefits are not available for them in this regard", the Union Minister for HRD being himself an educationist had immediately reacted in stating that "in my opinion the teachers should be allowed to have gratuity".

Reference is made to a judgment of the Bombay High Court in General Education Academy, Chemburv. Smt. Sudha Vasudeo Desai & Ors. (2001 LLR 627 (Bom. HC)) wherein Justice R.J. Kochar has observed "neither celebration of Teachers Day annually, nor any number of accolades, awards or acclamation of the teachers, that they are missionaries in the noble cause of education, would take place of bread and butter for them. The bestowed good words do not buy even 10 grams of sugar needed for the milk for their chi1dren. Howsoever high sounding showers of praise for their essential services to the society, after retirement they need gratuity more than the certificates and the wordy-homage to their work which cannot solve their post-retirement problems. Therefore, what they need first is the gratuity to buy some food for their survival. I do not know whether a man cannot live with bread alone but I certainly know that a man cannot live without bread. A hungry teacher can never fulfil the desire for good education. Even a missionary need fire in his belly to keep his spirit high. If I were to interpret the term 'employee' to exclude the teachers there from to deny them the bread for their evening of life, I would be wholly failing to the Constitution and also betraying the philosophy so well expounded by the Supreme Court in several cases while interpreting the endeavour of the State to materialize the Directive Principles enshrined in the Constitution".

While reacting upon the judgment of the Apex Court, the Secretary in the department of Elementary Education and Literacy, Mr. S.C. Tripathi said, "The Supreme Court has ruled as per its discretion, but the Act may need to be amended as teachers come in the category of employees". Talking of the age-old concept of gurus, he said, "When village committees engaged a person to teach children, he was highly esteemed and had a certain stature. But things have changed now. Today, teachers are like any other employee", he said

It would not be fair to blame the court for denying gratuity to the teachers since the court has only interpreted the law as it is framed. The onus for rectifying this situation lies with our lawmakers. What they need to do is to bring the letter of the law in line with its spirit. Now that the Apex Court has discovered the infirmity in law concerning teachers, it is possible that there may be other categories of employees also who may find themselves in eligible for the benefit on a strict interpretation of law. The solution lies in adopting a wider definition of the term 'employee' as, for instance, in the Provident Fund Act, 1952 but it should not take too much time since there is no likelihood of any opposition. Whether the ministry and our lawmakers will design to find time to do it, is another matter. Hopefully, since the HRD Minister himself being an educationist is seized of the matter, we should see some progress soon. Gratuity is a major social security measure available to employees at the end of their service and it provides them a safety net in times when they are unable to work. There is thus no reason to deny an important social security benefit.

_______________________________________________________________________

* Under S.2(1) of the Delhi School Education Act, "employee" means a teacher and includes every other employee working a in recognized school.

Public Duty & Public Law Rights: A Study in the Light of Recent

Decisions Under Art.226 of Constitution of India

(By P. Chandrasekhar, Advocate, Ernakulam)

Is Art.226 of the Constitution of India available to enforce private law rights? Administrative law in India has been shaped in the English mould. Power to issue writ or any order or direction for 'any other purpose' has been held to be included in Art.226 'with a view apparently to place all the High Courts in this country in some what the same position as the court of the King's Bench in England' (AIR 1953 SC 210).

Private law is that part of a legal system which is part of the common law that involves relationships between individuals such as the law of contract or torts. It is to be distinguished from public law which deals with relationships between individuals, business entities and non-profit organizations with the State including regulatory statutes, penal law and other law that effects the public order. English law reckons 'ordinary private law remedies' such as damages, injunction and declaration and 'public law remedies' in the form of certiorari and mandamus, collectively known as the prerogative remedies. Claims to remedies in tort are based on the infringement of private law rights and are in principle ineligible for judicial review, even though brought against public authorities. (Administrative Law: 8th Edition, H.W.R. Wade & C.F. Forsyth, page 656). Contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. House of Lords dismissed the application for certiorari of an employee of British Broadcasting Corporation to quash her dismissal since the ordinary contractual obligations of master and servant had never been within the scope of the prerogative remedies. (R V. British Broadcasting Corporation ex. p. Lavelle (1983) (1) WLR23)). In R. v. Lord Chancellor's Department Exp. Nangle ((1992) 1 All. E.R. 897) application of a civil servant for quashing disciplinary action was dismissed since his proper course was to sue for breach of contract. In R. East Berkshire Health Authority Exp. Walsh (1985 QB 152) the Appeal Court dismissed application of a male nurse against a health authority to quash the decision dismissing him from service. It was held that whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee's position and not on the fact of employment by a public authority per se or the employee's seniority or the interest of the public in the functioning of the authority.

In Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee ([1992] 1 All. ER 705) the House of Lords was concerned with decision of the Kensington and Chelsea and Estminster Family Practitioner Committee reducing the basic practice allowance of Dr. Premananda Roy, a medical practitioner. The House of Lords held that Dr. Roy had no right to be paid a basic practice allowance until the committee had carried out their public duty to decide as to whether or not to include Dr. Roy's name on the medical list. The public law decision of the F.P.C. to include Dr. Roy's name on the medical list brought into existence private law rights and duties. True demarcation line between public and private law involves focusing on whether the decision-making body took the decision challenged in the course of its public functions. It is the nature of the function which is being performed which is all important.

In R V. Panel on Take-overs and Mergers exparte Datafin ([1987] 2 WLR 699) Sir John Donaldson MR said that 'the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction'. In the Queen on the Application of Hopley v. Liverpool Health Authority & Ors. (unreported) (30 July 2002) Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are i) Whether the defendant was a public body exercising statutory powers ii) Whether the function being performed in the exercise of those powers was a public or a private one; and iiii) Whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. In Queen on the Application of Tucker v. Director General of the National Crime Squad (R V. British Broadcasting Corporation ex p Lavelle (1983) (1) WLR 23)). Lord Justice Scot Baker of Court of Appeal dismissed the application of a Detective Inspector in the Derbyshire Constabulary for certiorari to quash the decision terminating his services stating that the decision impugned in the case did not have sufficient element of public law to be subjected to judicial review and that it was of purely domestic nature.

A body performing public duty is, of course, amenable to writ jurisdiction but all decisions of that body are not subject to judicially review. Only decisions which has public element in it are judicially reviewable under writ jurisdiction. Early decisions of the Supreme Court took notice of the fact that the makers of Indian Constitution provided and conferred on the High Court powers to issue directions, orders or writs primarily to enforce fundamental rights and 'for any other purpose' was included with a view to place 'all the High Courts in this country in some what the same position as the Court of King's Bench in England (AIR 1953 SC 210).

The Court could make an order or issue a writ in all appropriate cases and in appropriate manner so long as it keeps to the broad and fundamental principles regulating the exercise of jurisdiction in the mater of granting such writs in English law (AIR 1954 SC 440). In Lekhraj v. Dy. Custodian, Bombay (AIR 1966 SC 334), the Supreme Court said that the 'chief function of the writ is to compel the performance of public duties' and writ of mandamus is issued 'only in a case where there is a statutory duty conferred on the officer concerned'. In Banchhanidhi Rath v. The State of Orissa (AIR 1968 SC 718) it was held that 'if a right is claimed in terms of a contract such a right cannot be enforced in a Writ Petition'. In Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496), the Supreme Court did not consider the proposition that every case of a breach of contract by the State or its agents or its officers would call for interference under Art. 226 to be a sound one. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union (AIR 1976 SC 425), the Supreme Court held that 'the jurisprudence of judicial review in this branch is substantially common for Indian and Anglo-American systems'. In L.I.C. v. Escorts Lta?.((1986 1 SCC 264) the Supreme Court said that 'actions of the State or instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review’.

In a revolutionary departure from its earlier traditional view the Supreme Court in Andi Mukta S.M. V.S.S.J.M.S. Trust v. V.R. Rudani ((1989) 2 SCC 691), held that the words "any other authority" mentioned in Art. 226 are not to be confined to statutory authorities and instrumentalities of the State and that they cover any other person or body performing public duty. It was also held that mandamus could not be denied on the ground that the duty to be enforced is not imposed by the statute. The Court however emphasized that if the rights are purely of a private character no mandamus could issue. Andi Mukta's case was followed by the Supreme Court in K. Krishnamacharyulu v. Sri. Venkateswara Hindu College of Engineering ((1997) 3 SCC 571), wherein it was held that private unaided educational institutions cater to educational need of the community and therefore there is a public element. In VST Industries v. VST Industries Workers' Union ((2001) 1 SCC 298), the Supreme Court held that manufacture and sale of cigarettes did not involve any public function and that in what could be considered a part of the service conditions of service of a workman no breach of public duty is involved.

In Air India Statutory Corporation v. United Labour Union ((1997) 9 SCC 377), the Supreme Court held that 'for a public law remedy enforceable under Art. 226 of the Constitution, the action of the authority should fall in the realm of public law'. In Steel Authority of India Ltd. v. National Union of Waterfront Workers ((2001) 7 SCC page 1 at page 23) a constitution bench of the Supreme Court, observed that the 'divide between the public law and private law is material in regard to the remedies which could be availed of when enforcing the rights, public or private'.

In U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey ((1999) 1 SCC 741), the Supreme Court said that 'by various decisions the Supreme Court has held with varying and divergent view that jurisdiction under Art. 226 could be invoked only when a body or authority, the decision of which was complained of, was exercising its power in discharge of public duty and that writ is a public law remedy' Federal Bank v. Sagar Thomas (2003 (3) KLT 876 (SC)) arose from a petition of a Branch Manager of a private Scheduled Bank challenging the decision of his employer dismissing him from service. High Court held that Federal Bank Ltd. is performing public duty and as such it came under the definition of 'other authority' within the meaning of Art. 12 of the Constitution of India'. Supreme Court set aside the judgment of the High Court and held that private bank like Federal Bank did not discharge public duty and the statutory control by Reserve Bank of India do not confer any such status upon the bank. This legal position has been reiterated by the Supreme Court.

An overall survey of English and Indian decisions would show that there is no remarkable difference between the law as it applied in England and the law applied in India with regard to availability of public law remedy in the form of prerogative writs. Except in the case of a State within the meaning of Art.12 of Constitution of India and where infringement of any right guaranteed under Part III of the Constitution is complained of, the twin test of the public duty discharged by the authority and presence of public law right which is sought to be enforced is necessary to invoke writ jurisdiction.

There appears to be, however, some confusion with regard to meaning and content of the word 'authority' used in Art.12 and the same word used in Art.226 of the Constitution of India. An 'authority' which is amenable to writ jurisdiction under Art. 226 need not be an "authority" within the meaning of that word used in Art.12. Art.12 identifies an 'authority' as State for the purpose of Part III of Constitution of India. Part III contains the fundamental rights. A State within the meaning of Art.12 is amenable to writ jurisdiction under Art.32 and Art.256 of Constitution of India when infringement of fundamental right is involved. Violation of constitutional right injects necessary public element to a decision or action giving rise to public law remedy. Breach of contract on the part of State, therefore, is subject to writ jurisdiction when it involves violation of fundamental right guaranteed under the Constitution of India. State, under Art.12, has no relevant except when fundamental right is sought to be enforced. When rights other than fundamental rights are sought to be enforced it is not necessary to see whether the authority against whom the writ is asked for is an 'authority' within the meaning of Art.12. While every authority discharging a public function is not a State within the meaning of Art.12, Art.226 which has been couched in a very wide terms, takes in its ambit every 'authority' discharging a public duty. The High Court while rendering Federal Bank's case (2003 (3) KLT 876 (SC)) appears to have lost sight of this distinction. As a result the High Court, in that case went on to hold that Federal Bank is discharging a public duty and therefore is a State within the meaning of Art.12.

Two recent decisions are glaring example for the error into which High Courts are likely to be betrayed in the absence of well laid down criteria for determining 'public duty' and 'public law right'. In Suter Paul v. Sobhana English Medium High School (2003 (3) KLT 1019) the Division Bench has held that 'having considered the pervasive control of the educational authorities over the recognized unaided institutions in the State, have no hesitation to hold that such institutions are amenable to the jurisdiction of the High Court under Art. 226 of the Constitution of India. The relationship between the teachers of private schools and their employers, namely, the educational institutions in which they work, is contractual in nature. There was no statutory under pinning in the employment giving rise to any public law right. It is one thing to say that an unaided private educational institution, while imparting education, which is essentially a governmental function, is discharging public duty, and it is altogether another thing to say that teachers of an aided private educational institution by virtue of their employment has a public law right created in their favour. The service conditions of teachers and non teaching staff of recognized unaided schools in Kerala are covered by Chapter XIVA A of Kerala Education Rules. No public duty element can be found in the decision of a private school towards a teacher or a non-teaching staff of an unaided private recognized school arises unless any of the provisions of Chapter XIV AA of Kerala Education Rules is violated by the school. Though an unaided private recognized school, imparting education, is discharging public duty as held by the Division Bench in Annamma v. State of Kerala (1994 (1) KLT 309), writ to enforce contractual right arising from a contract of personal service is not maintainable.

Yet another decision in which the court failed to consider the distinction between the 'public duty' and 'public law right' is Jose Kuttiyani v. Kerala High Court Advocates' Association (2004 (1) KLT 35). The Association is an unregistered collective body of Advocates practicing in High Court of Kerala. The relation between the Association and its members is contractual and not statutory. The writ petition filed by Shri Kuttiyani, was in challenge of a decision of the Association suspending him from the primary membership of the Association. The decision did not involve any public element. By suspending Shri Kuttiyani, the Association did not violate any statutory provision and the writ was not filed alleging infringement of any statutory duty on the part of the Association. The fact that an Advocate had to be a member of an Advocate's Association to become member of Advocates' Welfare Fund and that the Association has a statutory role in forwarding the application of an Advocate for membership in the Advocates' Welfare Fund did not inject any public law element into the decision of the Association to suspend Shri Kuttiyani. In short, the Court, in Kuttiyani's case, was enforcing a private law right of Shri Kuttiyani by issuing a writ, which is a public law remedy.

It is submitted that it is time for closer scrutiny into the nature and content of 'public duty' and 'public law rights', which are necessary ingredients for invoking writ jurisdiction under Art.226 of Constitution of India and to lay down definite criteria, at least broadly, for future guidance. Had the Supreme Court held in no uncertain terms that the difference between 'public law rights' and 'private law rights' is not relevant in deciding whether decision of a person or authority is amenable to writ jurisdiction under Art.226 of Constitution of India, it would not have been necessary for High Courts to labour on the question of existence of public law element in a decision under challenge. But till such time, the necessity to demarcate the dividing line between 'public law right' and 'private law right' needs no emphasis.

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BANKERS' DILEMMA - A CREATION OF ITS REGULATOR

(R. Ravikumar, Manager (Law), Central Bank of India, Coimbatore)

Reserve Bank of India announces One Time Settlements for speedy & effective recovery of bad debts of banks. This is vital in as much as the alternative mechanism for speedy recovery, the setting up of Debt Recovery Tribunal under the R. D.B. Act does not supply the desired fillip as contemplated. The situation is aggravated in Centres where Presiding Officers are not from the judiciary.

Many borrowers availed the opportunity and settled their dues under R.B.I. O.T.S. But a few recalcitrant borrowers under the guise of settlement had filed application before the DRTs where the suit against them is pending for a direction to the bank to accept the book outstanding and settle the matter.

Debt Recovery Tribunal overlooking its statutory obligation in arriving at the debt by proceeding with the trial takes cognizance of these applications and overlooking bank's contention that the R.B.I, guidelines stipulates only the "minimum amount" recoverable and it is open to the creditor to demand more over and above book outstanding depending upon various factors such as value of security and worth of the borrower/guarantors.

The operative portion of R.B.I, guidelines stipulates that the minimum amount that should be recovered under the revised guidelines in respect of compromise settlement of N.P.A. classified as doubtful or loss as on 31.03.2000 would be 100% of the outstanding balance in the account as on the date of transfer to the Protested Bills Account or the amount outstanding as on the date on which the account was categorized as doubtful N.P. As, whichever happened earlier, as the case may be.

The said guidelines also stipulate that the directions are non-discretionary and non­discriminatory. This leaves a little space for some to interpret that the guidelines are mandatory and as such is statutory in nature. The guidelines gives room for controversy by stating that the minimum account recoverable would be "the amount outstanding as on the date on which the account was categorized as doubtful NPA". This is why because in banking parlance balance outstanding is understood to be book outstanding and as such, the same remains static after seizing charging of interest to the account. An account when becomes NPA, first it is classified as sub-standard and after a period of 18 months as doubtful, thus by stating amount outstanding as on the date on which the account was categorized as doubtful gives an impression that the bank can add up the interest to the book outstanding and claim the interest as per contract for a further period of 18 months. This is disputed by the borrowers.

Next point of controversy is as to whether the R.B.I, guidelines are directory in nature or mandatory and statutory. Contradictory decisions are available at the bar. As the Hon'ble Supreme Court of India in some other context has already held that guidelines are mere guidelines and nothing more can be inferred and also since the impugned R.B.I, guidelines are directions for a negotiated settlement, it can safely concluded that present R.B.I, guidelines for One Time Settlement are only directory in nature. R.B .1. should intervene and clarify the position or the courts having writ jurisdiction may take cognizance of the issue and decide the same so that a lot of time and energy of lenders can be saved.

'JUDICIAL ACTIVISM' - TRANSGRESSES LIMITS?

(By N. Dharmadan, Senior Advocate, Former Judicial Member, C.A.T.)

Indian Constitution has special features that distinguishes it from other Constitutions of the World. It establishes a federal parliamentary form of Government. Its executive powers are vested in the Prime Minister and Council of Ministers. Unlike in some other countries we have one unified judicial system with the Supreme Court as the highest Court. Both these organs function within the frame work and parameters of the constitutional device of division of powers earmarked in the Indian Constitution. If any one of these organs exceeds the jurisdiction and oversteps the limits there would be confusion affecting the growth, development and smooth functioning of the democracy.

The sole function of the judiciary is to deliver justice to all. The role of the Judge or Judges remains relatively "pro-active". It consists of rendering decisions that is 'responsive' to the proofs and arguments. Judges do not write their opinion without regard for arguments and contentions of litigants. Adjudication is a means of deciding disputes between people or parties. The courts could decide by reasons after hearing arguments. In this sense litigants are the authors of a decision and courts are accountable to those who are bound by such decisions. Moreover the courts have to respond to the hopes and aspirations of the people to secure "justice-social, economic and political". Their decisions must be "democracy promoting".

In the discharge of its solemn function and duties the court has to be 'active' and not 'passive'; but it cannot be "overactive". The question is whether the judiciary in these days is "over active" or not and what is the remedy when it oversteps the limits and start exercising functions, assigned to other institutions under the Constitution of India?

Judicial activism is based on "legal activism", which means actively using law for bringing about social change. The Legislature may on certain occasions initiate change of its own or may act in response to any demand for such a change. The Government can also act on its own or proceed in the above line. Similarly courts might act to recognise the right not so far recognised or create new ones through interpretation of the Constitution or of the laws while adjudicating contentious issues. All this is 'legal activism' forming foundation. But the cardinal principal is that each of the institutions should confine its action within the assigned area under the Constitution. One should not trench upon the area of another.

The Courts today are not merely 'court of law for deciding issues, but have become 'Court of justice' to secure justice to every citizen of the country, for which they have to be very active and rise to the occasion. Justice for all is the cardinal principle on which our whole system of administration of justice is based. For this the law accords with justice and it should adopt to the necessity of time and needs of the society. The legislative process is too slow. Even executive may some times fail to implement the law. So this task invariably falls upon the Courts. They can by the process of interpretation or judicial activism adopt the law to suit the needs of the society. But in achieving this object the court can use or abuse or misuse the power. In this connection it should be remembered that the powers are being capable of gross misuse. So there is a great need for caution and circumspection. This is a matter for the Judge themselves to adopt or develop through 'self restraint' without any out side pressure and pulls, while they are discharging judicial functions and duties.

The power of court to give life to law was exercised by the Apex Court right from the beginning. But it was not at all 'proactive' at that time. There was self restraint. Supreme Court in A.K. Gopalan 's case1 turned down activist interpretation of Arts.19 and 21 that these Articles must be read together conjunctively and "personal liberty" must be held to include all aspects of liberty and the words "procedure established by law" must mean the procedure as is considered just and fair by a civilized society. This was not accepted. But the law had undergone a radical change ever since Kaipak's case.2 The court held that rules of natural justice might be required to be observed even in purely administrative action as well. But the turning point was Maneka Gandhi's case3 in which the Apex Court had given an expanded meaning of life and liberty while interpreting Art.21. About thirty years after A K. Gopalan's case, the Supreme Court accepted activist interpretation of Art.21 and held that procedure contemplated in this Article must be 'right, just and fair' and not arbitrary and it must pass the test of reasonableness. In subsequent cases4 the court continued the tirade and frowned against the executive tyrannyand Governments delay in affording basic minimum civic services to citizen and adopted the same approach in innumerable cases for rendering justice.

So, the period from 1978 has been a period of judicial activism. During this period the courts endeavoured to maintain rule of law, which is one of the sources of judicial activism. In fact the relevance of judicial activism and firm action by the court necessitates when constitutional crisis arises due to the misuse of powers by the constitutional authorities. Then the court should be firm and bold and rise to the occasion to do justice. So the real judicial activism can be discerned when the principle of "rule of law" is established and maintained by the court in periods of crisis. This is considered to be the duty of the court.

The next source of judicial activism is judicial review. In areas of judicial review of (i) legislative action, (ii) executive or administrative action and (iii) judicial action the courts become active. Judicial review in countries having written constitution is the power of testing the validity of legislative and governmental actions on the touch stone of the constitutional provisions and principles. The duty of the judiciary is to give effect to the legislative policy of a statute in the light of the principles and provisions of the Constitution.

It is always good for a progressive society, as envisaged in the preamble of the Constitution, the Judges function to keep the law alive and make it pragmatic and progressive for the purpose of arriving at a right conclusion without being inhabited by technicalities and narrowness the spells injustice. Lord Denning said5

"It is no longer necessary for the Judges to wring their hands and say - There is nothing we can do about it", when ever the strict interpretation of a statute gives rise to an abrade and unjust situation the Judges can and should remedy it - by reading words in, if necessary".

In Delhi Development Authority's case6 our Supreme Court also said while exercising judicial review.

"Art.129 is a constitutional power and when exercised in tandem with Art.142, all such objections should give way. The court must ensure full justice between the parties before it........The absence of statutory power will not inhibit this Court while acting under the said articlefrom making appropriate orders for doing complete justice between the parties".

Our Judges should infuse life and vigour into legal system by actively persuing alllegitimate means to do justice. "A Judge should not be................mere mechanic in the powerhouse of sematics. He should be the man in charge of it"7 Lord Denning8 again said.

"the crux of the matter is that while stitching the cloth is the business of the Legislature, straightening the creases is the province of the judiciary"

Justice Krishna Iyer once said9 that

"the Judges should consciously mould new principles to meet the needs of the present". According to him "Judges are not monks but participants in the dynamic, living stream of our national life".

Under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law and make the 'rule of law' meaningful. Judiciary thus exercises its supervisory function by using its power of judicial review. So in a democracy for its successful functioning independence and integrity of judiciary is sina-qua-non and it must be given highest importance. It is with this object that the framers of this Constitution had made elaborate provisions10 envisaging almost all possible contingencies.

But when the Judges exceed the limits and become overzealous due to "power corruption" what is the remedy? There is no remedy. The process of impeachment for 'proved misbehaviour or incapacity of the Judges' as provided under the Constitution had been established beyond doubt that it is not satisfactory or sufficient to meet the situation or tackle the problems or eschew the apprehensions created due to judicial excess. Daily we are seeing reports of the judgments which are virtually "usurping the functions of the executive". Now "not a day passes when front pages of news papers do not scream about "landmark" judgments of the High Courts and Supreme Court." This "judicial extremism" and aggressive role-played by the judiciary should be controlled and curtailed when it transgresses the limits. But there is no machinery or solution to alleviate the fear in the mind of the people. In fact the judiciary has the accountability and it has full transparency. Fears of "judicial tyranny" and "judicial extremism" cows down the Executive and it became very weak when compared with the past.

Many traditional procedural requirements for arriving at a decision such as locus standi, raising of specific point, filing of petition, affidavit, producing evidence etc. are either ignored or overturned; mere posting of a card to individual Judge came to be accepted for initiating judicial process for rendering decisions. Some of the latest decisions of the Apex Court reported in Narasimha Rao's in Jharkant Mukti Morcha's case11, U.P. Speaker's case12, Gujarat Presidential reference13, Lawyers Strike prohibition's case14, Madras Government Servants strike's case15 etc. are subjected to strong criticism by jurists and writers that the court has overstepped its jurisdiction and exceeded the limits. Activist Judges have been interpreting statutes in a most liberal manner with the enthusiasm by way of fishing expeditious searching for legislative intent. They adopt ingenuous methods or technical interpretation and the interpretation given to a particular statute will vary from Judge to Judge. So much so the law will lose its vitality and consistency. The decision even in settled matters become unpredictable, dubious and divergent. Thus the process of interpretation as adopted by theJudges today can be used in such a way that a particular Judge can reach to a conclusion which he desires or attunes according to his whims and fancy. This is a dangerous situation to be avoided. Unbridled powers on any institution lead to corruption. The judicial activism is a healthy trend but the judiciary should not transgress into the domain of law-making, which is exclusively with in the purview of Legislatures and Parliament. If this is allowed to continue the result would be disastrous and result in judicial autocracy. In fact the Supreme Court at the initial stage cautioned this while interpreting the scope of Arts.19 and 21 in A.K. Gopalan's case, when activist lawyers propounded new principles for acceptance. In that case the Supreme Court was giving more predominance to 'judicial restraint' stating that it is always better and fair to strike a balance between individual liberty and social control. Now due to the fact that the Legislature and Executive are very weak and Judiciary is taking upper hand and proceeding safely without any threat or interference from other two organs.

From the recent judgments and trend of the courts it is clear that the judiciary has established their superiority over the Executive and Legislature ever since the Judge case16. If the Apex Court continues the supremacy and lays down precedents and principles in that perspective it would be misused and abused by the courts below. Presumably foreseeing this situation and danger to the judiciary that the former Chief Justice, P.N. Bhagavathi, who was one of the main authors of "PIL" and a dynamic Judge cautioned and said:

"Judges should not stray too far in a field not allotted to them under the Constitution because that can become counterproductive and defeat the purpose of judicial intervention".

"We the people of India" are not completely happy about the present day 'judicial activism' because it has reached to a stage that is more worse than Executive or Legislature. A remedy has to be sorted out for ensuring the strict adherence to the tripartite division of Legislature, Executive and Judiciary in all dealing of the State and Governmental functions; one should not exercise the functions assigned to another as insisted in the prestine principle propounded by Artistotle17.

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Foot Note

1. AIR 1950SC27.

2. AIR 1970 SC150.

3. AIR 1978 SC 597.

4. Ratlam Municipality v. Vandhichand AIR 1980  SC l622 and Mukti Morcha AIR 1984 SC 82.KLT

5. Nothman Vs. BemetCo. (1978) 1 All. ER 1243 at 1246.

6. AIR 1996 SC 2005 para 21 & 32.

7. Lord Denning - The Discipline of law - page 56-57.

8. Lord Denning-page 580.

9. Justice V.R. Krishna Iyer Law Versus Justice Problems and Solutions page 119

10. Art. 124 (4) and (5) of the Constitution of India.

11. AIR 1998 SC 2120.

12. AIR 1993 SC 3340.

13. AIR 1993 SC 87.

14. 2003 (l) KLT 192.

15. 2003 (3) KLT 86.

16. AIR 1994 SC 268.

17. Constitution and Seperation of powers by M.C.J. Vile and The Law and the Constitution by Sir Ivor Jennings page 280.