Page 257 - DCOM404_CORPORATE_LEGAL_FRAMEWORK

Corporate Legal Framework

Notes 11.9 Judicial Activism

Indian Constitution provides three limbs of government for its effective functioning. They are;
Legislative, Executive and Judiciary. Their functioning is based on the principles of “checks and
balances”. During the run of government and after a passage of time there are certain legislations
which become obsolete and outdated, some became irrelevant, some legislations leave gaps and
there are some areas where legislature does not enact law because of political considerations.
There are some aberrations that are noticed during the execution of these laws by the Executive
wings, which requires either removal or strengthening. The Indian Constitution gives judiciary
the power of “judicial review” by which it can intervene and interpret the existing laws in correct
perspective and in the best interest of the society. It can invent and reinvent new laws to match the
needs of society. Of late, judiciary has moved beyond the beaten track and have gone to intervene
in the cases of social and national interest suo moto or through public interest litigations. These
are beyond classical jurisprudence practices. The result is that many of the land mark judgements
in the field of Child Labour, Bonded Labour, Industrial Pollution and many other vital areas have

come and compelled judiciary to take unprecedented stands and give verdict to bring balance
and order in the society.
Classical role of judiciary is to follow law/rule/precedent blindly. But today, it takes inspirations
from Human Rights Conventions, UNO’s charters, ILO’s conventions and recommendations
and reasoning and logics provided by various national and international bodies. It takes into
account the requirements of technological developments, communications through media and
unhealthy and unbalanced growth/developments because of these new phenomenon and gives
instructions and directions to society to move in right direction. These forces have pressurised
judiciary to expand and stretch its role and do social-engineering and by cutting undesirables
and adding desirable ones. Social-justice, Economic justice and Political justice enshrined in the
preamble of our Constitution gives it the right to intervene in any sphere of Society’s functioning.
This has given birth to concepts like “Creative justice” or “Innovative justice”. This phenomenon
is also known as “Judicial Activism”. Critics call it “judicial Anarchism” or “judicial despotism”
or judicial “adventurism”. Whatever it may, it has come to stay and it has impacted our living
and working and will continue to do in future also.
After independence we entered the age of socialism and egalitarianism, therefore judiciary was
busy in protecting the interest of weaker sections of society by advocating the principles of “social
justice”, “distributive justice” and “discriminative justice”. Such a stance have produced many
land marked judgements protecting the interests of workers, some of which have hampered the
interest of industry and business. However, trends got reversed after we have entered the age
of liberalisation and globalisation where our corporations have to compete with multinationals.
Judiciary has realised that our labour and trade unions have been too much protected and
pampered. Therefore, time has come to take realistic stand on issues affecting on business and
industries. The result is that of late there have been a number of judgements where the High
Courts and Supreme Court have given their judgements against populist stand held by our Trade
Unions and workers. There are a number of judgements in which both employers and workers
have been happy or unhappy.
Both employees and workers have been affected by some judgements. Closure of polluting
industries and prohibition of mining activities in forest areas have been resisted by both the
parties. Closure and shifting of factories in Agra to prevent pollution to Taj was opposed by
owner and workers.

Courts have now started giving importance to Consumer Rights as well as social rights of the
workers. Consumers are no more silent spectators. We have a Consumer Protection Act, 1986
which is meant to redress the grievances of the consumers. Both Consumer Courts and Civil
Courts are telling workers and their unions that rights are theirs only if in exercising them they
do not stand on the right of others.

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