ESTABLISHING EQUITABLE JUSTICE: THE CLIMACTERIC ROLE OF THE SUPREME COURT BY - SOURYA GOPAL MUKHERJI
ESTABLISHING ‘EQUITABLE JUSTICE’: THE CLIMACTERIC ROLE
OF THE SUPREME COURT
AUTHORED
BY - SOURYA GOPAL MUKHERJI
First-year law student
Jindal Global
Law School, O. P. Jindal Global University, Sonipat, Haryana
Abstract
With the Supreme Court becoming an
omnivorous arbiter of the last, and in current period, even the first, resort,
there has been an increasingly mounting pressure on this guardian of the
Constitution to secure the aspirations of the common man. The Constitution of
India vests wide ranging powers in the Supreme Court to protect the fundamental
rights of the citizens and these are the very rights that secure to the
citizens their aspirational prowess. The following article seeks to expound the
theoretical underpinnings of the common-law system in which our Supreme Court
works and how such a system has bestowed upon the court a way of ensuring the
rights of citizens is preserved. The article goes on to discuss a variety of
cases, including three landmark ones and finally concludes on a humble note to remind
the readers that not every story of heroism is a fairy-tale and has discovered
its own pit-falls owing to vulnerability to Indian political context. The theme
of social preservation features as an important pivot which sustains the
framework on which the workings of the court is modelled. The
socio-legal aspects discussed in the article seek to reaffirm the
transformative role played by the Supreme Court in asserting its commitment to
“equitable justice”.
India’s diverse social landscape poses
a pressing demand for a justice system which acknowledges and caters to the
litigants’ specific needs, thereby structuring such a justice system on the
noble ideal of equity. While this could not only be dexterous but also daunting
it can, in true sense, help to materialize the idea of a utopian society based
on tolerance, inclusivity and representation. Therefore, a justice system that demolishes
the barriers rife with marginalisation, social stratifications and cultural
stigmatization, can profoundly impact the members of the civil society not only
through concrete decisions in cases but also through a prolific influence on
policy decisions of lawmakers.
The society envisioned by the members
of the Constituent Assembly of India got reflected in the Constitution, which
came into force on 26th January 1950, securing to the citizens their
enforceable fundamental rights and prescribing the state certain unenforceable
directives to lead their state policy. Such directives attain only a symbolic
value in light to present injustices reigning in the society. Perhaps to strike
a meaningful balance between such rights and directive principles, the courts
must resort to invoking a system of “justice” led by “equity” to enforce the
spirit of the law than just the rule of the law. In this context, “equity” is
construed as the spirit and habit of fairness, justness and righteousness which
regulates the intercourse of men with men, hence a broader synonym of natural
right or justice “grounded in precepts of conscience and not in any sanction of
positive law”[1]. Further, “equitable” may be defined as
something which is marked by what is fair and impartial, in accordance with
natural justice.[2] It can be inferred thus that “equity” is inherent to the
idea of “justice”.
The role of the Upper Judiciary- the
High Courts and the Supreme Court- in establishing “equitable justice” has been
pivotal. The Supreme Court of India, through judgements pronounced in landmark
cases like Vishakha and Ors. v. State of Rajasthan and Ors., M. C.
Mehta and Anr. v. Union of India and Ors., Navtej Singh Johar v. Union of India,
Savelife Foundation and Ors. v. Union
of India and
Olga Tellis v. Bombay Municipal Corporation among others, has
spearheaded a new brand of “equitable justice”. The Supreme Court’s proactive
role in promoting a societal shift towards better implementation of social
justice underscores its role in advancing social equity[3]. It is clear that Supreme Court
somewhat assumes an identity that recognizes the plight of the litigants and
offers them redressal which lawmakers fail to incorporate in their policies.
II. A
PHILOSOPHICAL VIEW OF THE INDIAN LEGAL SYSTEM
Indian legal system still follows the
Common Law model, prevalent in countries once part of the British Commonwealth,
cross-fertilized by typical Indian values as embellished in the Indian
Constitution[4]. As such, the Indian Legal System is
adversarial, where the judge is a neutral arbiter and assumes an active role,
both during and beyond the trial process, to protect the rights of victim and
punish the wrongdoer[5]. The inherent flexibility in this
system allows judges for a timely and relevant response to changing societal
requirements and formulation of principles that cater to developing areas of
law[6]. The genius of common law lies in
the fact that it is flexible and adaptability, which is an integral part of the
constitutional function of judiciary[7].
In civil law jurisdictions, while
judges have a purely interpretative role led by doctrinal guidance of
exhaustive and extensive statues, the common law jurisdiction allow for law
making that is both comprehensive and focused[8]. The statues only provide selective
explanations of certain areas hence judges must resort to individual discretion[9]. Thus, the courts are often faced
with the challenge of dealing with legislative gaps and reconciliation of
contradictory statutes coupled with a lack of clarity with the most appropriate
methods of statutory interpretation; thus, courts have come to favour a
purposive approach over a plain meaning or literal rule[10].
Clearly, from the above discussion,
it can be inferred that we live in a legal system where judges and hence,
courts, have an extensive role in ensuring that “justice” is the last word,
through careful and thorough examination of cases. It is also true that Indian
statues cannot always provide for a remedy for every particular situation and
hence judges must resort to a naturalist approach rather than a positivist one
in order to carve out a remedial framework for the litigants. “Equity” forms
the basis of natural justice, as rightly described by Osborne[11]. Lon. L. Fuller, a naturalist, took
strict objection to strict positivist approach due to their separation of what
law is and what law ought to be[12]. Fuller stressed on purposive
interpretation of human behaviour “when
we accept the full consequences that flow from a view which treats human action
as goal-directed, the relation between fact and value assumes an aspect
entirely different from that implied in the alleged "truism" that
from what is nothing whatever follows as to what ought to be”[13]. One cannot interpret the statute without knowing what its
purpose is.
The analysis of law must begin with experience and not
self-imposed abstraction. Judges can improve a tradition while transmitting it.
Fuller states that the collaborative articulation of shared purposes is
what has produced the traditional case by case development of the common law
and which has emerged as the way of solving the problems of law while keeping
in pace with the changing social order[14]. The purposive and creative element is essential to let law
grow and reproduce itself anew. The onus is on the judge to see what is right-
right for the litigant and right in light of the litigant’s purposes[15].
On a conceptual level, the development of concept of “equity”
in England was an attempt to introduce a branch of common law where the
existing procedures and remedies could not grant relief in a particular case[16]. Thus, “equity”, may further be defined as a body of legal
principles that emerged to supplement the common law when the strict rules of
its application would limit or prevent a just outcome[17]. The two systems- that of equity and of common law- got
fused in England through the Judicature Acts of the 1870s. What we have today is a concept of “equity” heavily ingrained in
common law traditions of the present, hence in that of India’s legal systems
too.
III. THE SUPREME COURT’S
INDISPENSABLE ROLE
The Indian Legal system places a heavy reliance on the body
of laws made by judges. Hence, casebooks and good textbooks play a crucial role
in summarizing the judgements given by the top court. The doctrine of stare
decisis dictates that a lower court must follow the decision of the courts
above it in the judicial hierarchy[18]. The Supreme Court of India can actively police the High
Courts and subordinate courts through the power conferred upon it by virtue of
Article 141 of the Indian Constitution[19]. However, what is relevant to us is the fact that the Indian
Supreme Court is not bound by its past precedent and may overrule decisions
that appear “plainly erroneous” premised upon “changing times”[20]. This mirrors the approach that we have discussed under the
previous sub-heading.
In Chandra Bansi Singh v State of Bihar[21], the Supreme Court declared itself as not only a court of
law but also a court of equity; quite as if denoting the commensurability of
the two concepts. The Supreme Court has also been granted wide powers under the
Article 142 of the Indian Constitution[22] to render “complete justice”, wherein it can grant equitable
relief and may pass necessary order for keeping balance equities amongst
parties[23] and may also grant equitable relief to eradicate injustice[24].
Furthermore, under Article 32 of the Indian Constitution[25], the Supreme Court and the High Courts may issue a variety
of writs for enforcement of an individual’s fundamental rights. In Vishal
Jeet v. Union of India[26], the Supreme Court issued directions to check the evil of
child pornography under Article 32 of the Constitution. In another case[27], the Supreme Court issued directions for the revival of a
company (viable units) having regard to the fact that living had been denied to
10,000 workers for five years, invoking Article 32. In yet another case[28], the Supreme Court held that segregating children of
prostitutes by locating separate schools and providing separate hostels would
not be in the interest of such children, using its powers under the said
article.
Under Article 136 of the Indian Constitution[29], the Supreme Court may grant special leave to any order,
decree, judgement, determination or sentence passed by any tribunal or court in
India. It is a power that grants the court power to value equity and one that
incorporates a justice-oriented approach rather than strict adherence to law[30]. Additionally, the Supreme Court under the said article may
issue directions if the law does not provide a solution of a problem, as an
interim measure, till the proper law is enacted by the Legislature[31].
The cases and the relevant articles discussed above provide a
clear snapshot of the powers of the Upper Judiciary, especially of the Supreme
Court, to exercise its discretion and exercise purposive application of law to
adjudicate cases, which is the finest example of “equitable justice”. The
powers of the Supreme Court under relevant articles gives it the discretion in
order to give complete justice. Discretion, a defining feature of common law
jurisdictions, lies at the heart of equity jurisdiction[32].
IV. RELEVANT CASE LAWS
In the case of Vishakha case[33], a writ petition was filed before the Supreme Court with the
broader cause for the enforcement of the fundamental rights of the working
women under Articles 14, 19 and 21 of the Constitution, alongside an immediate
cause being the brutal gang-rape of a social worker in a village of Rajasthan.
The Court identified violations of the rights flowing out of the aforementioned
articles and further held that:
“Such violations, therefore, attract
the remedy under Art. 32 for the enforcement of these fundamental rights of
women. This class action under Art. 32 of the Constitution is for this reason.
A writ of mandamus in such a situation, if it is to be effective, needs to be
accompanied by directions for prevention; as the violation of fundamental
rights of this kind is a recurring phenomenon”[34].
As inferred under previous subheadings, the creative element
of law is essential for ensuring “equitable justice”. In the present case, the
Supreme Court states that when instances of sexual harassment of women are
brought before them, the court must lay down some guidelines for the effective
redressal to protect the rights guaranteed under Arts. 14, 19, 21 to fill the
legislative vacuum.
“When, however, instances of sexual
harassment resulting in violation of fundamental rights of women workers under
Arts. 14, 19 and 21 are brought before us for redress under Art 32, an
effective redressal requires that some guidelines should be laid down for the
protection of these rights to fill the legislative vacuum”.[35]
The Court noted its obligation under Art. 32 of the
Constitution and took cognizance of international norms and conventions
existing at that time, in the absence of domestic laws, for the purpose of
formulation of guidelines. This is a fine example of law actively reproducing
itself in order to supplement the common-law understandings of “equality” as
enshrined in articles of the Constitution, through proving equitable remedies.
In another landmark case of M. C. Mehta and Anr. v. Union
of India and Ors.[36], a writ petition before the Supreme Court sought the closure
of the Shriram Food and Fertilizers and several other industries on the
ground that they were hazardous to the community. Furthermore, during pendency
of the petition, there was a massive escape of oleum gas from one of the units
of Shriram and the people harmed as a result of the escape filed
separate applications for compensation; all such applications, clubbed with the
writ petition, were finally presented before a 5-judge bench of the Supreme
Court citing “issues of great constitutional importance”[37]. However, what makes this judgement special is the Court’s
affirmation of its epistolary jurisdiction and devising the principle of absolute
liability to render equitable justice.
Epistolary Jurisdiction is a unique feature of Public
Interest Litigation[38], which enables the Constitutional Courts in India to treat a
letter by a person or on behalf of an aggrieved person, telegram or an article
in the newspaper as a writ petition[39]. In India, the Supreme Court emerged as the symbol of hope
for the deprived and vulnerable sections of the society[40] and to meet the ends of justice, the court relaxed the
technical procedures in order to treat mere letters addressed to Courts as writ
petitions where there is a glaring violation of citizens’ basic rights[41].
In the oleum gas leak case, the Court did away with the
principle of strict liability as developed in the English case of Rylands
v. Fletchers. The court held that:
“Law has to grow in order to satisfy
the needs of the fast changing society and keep abreast with the economic
developments taking place in the country. Law cannot afford to remain static.
The Court cannot allow judicial thinking to be constricted by reference to the
law as it prevails in England or in any other foreign country. Although this
Court should be prepared to receive light from whatever source it comes, but it
has to build up its own jurisprudence, evolve new principles and lay down new
norms which would adequately deal with the new problems which arise in a highly
industrialised economy”[42].
The principle of absolute liability mandated that
enterprises engaged in hazardous or inherently dangerously activity posing a
threat to health and safety of workers
working inside the enterprise as well as those outside the enterprise premises
owe an “absolute non-delegable duty to the community” and that such enterprise
must be absolutely liable should any harm result on account of its activity ,
“irrespective of the fact that the enterprise had taken all reasonable care”[43].
The court drew this power to formulate an equitable principle
on basis of power conferred upon by Art. 32.
“It is in realisation of this
constitutional obligation that this Court has, in the past, innovated new
methods and strategies for the purpose of securing enforcement of the
fundamental rights, particularly in the case of the poor and the disadvantaged
who are denied their basic human rights and to whom freedom and liberty have no
meaning”[44].
In Olga Tellis & Ors. v. Bombay Municipal Corporation
& Ors.[45], a writ petition was filed before the Supreme Court of India
by journalist Olga Tellis along with two pavement dwellers whose establishments
were destroyed following an order of eviction and deportation of slum and
pavement dwellers by the Government of Maharashtra in accordance with the
Bombay Municipal Act 1888. This was followed by a second group of petitioners
whose plea was heard along with the first petition. Allegations were raised
that attempts were made to deport the dwellers from their places of settlement
despite an injunction order against the same.
On the question of whether there can be any estoppel
obtained against enforcement of Fundamental Rights, the court held that:
“No individual can barter away freedom
conferred upon him by the Constitution. A concession made by him in a
proceeding, whether under a mistake of law or otherwise, that he does not
possess or will not enforce any particular fundamental right, cannot create an
estoppel against him in that or any subsequent proceedings. Such a concession,
if enforced, would defeat the purpose of Constitution”[46].
The Supreme Court of India went on to interpret the Article
21of the Indian Constitution[47]. The contention whether right to life meant a right
to livelihood was cleared by the court as it unequivocally stated that:
“An equally important facet of that
right is the right to livelihood because, no person can live without the means
of living, that is, the means of livelihood. If the right to livelihood is not
treated as a part of the constitutional right to life, the easiest way of
depriving a person his right to life would be to deprive him of his means of
livelihood to the point of abrogation. Such deprivation would not only denude
the life of its effective content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have to be in
accordance with the procedure established by law, if the right to livelihood is
not regarded as a part of the right to life”[48].
The Court, giving due consideration to the plight of the
pavement and slum dwellers who have “no means of livelihood in villages” and
the economic compulsions that force them to live an dreadful life in cities,
held that the right to occupation as well as the right to settle
as in Article 19(1)(e) “to reside and settle in any part of the territory of
India” and 19(1)(g) “to practise any profession, or to carry on any
occupation, trade or business”, have been violated by the Bombay Municipal
Corporation. The Court reminded the State of its obligation to secure to its
citizens right to livelihood and right to work.
In light of the case, the Court upheld the principle of audi
alteram partem- that the dwellers should have been given an opportunity to
be heard- and closed the case, passing an eviction order while providing for
alternative pitches with a month’s notice to the pavement dwellers. This is a
strong example of “equity jurisdiction” of Supreme Court, whereby it paved way
for a decision which respects and recognizes the plight of the litigants.
Thus, Supreme Court can invoke its equity jurisdiction to
adjudicate matters concerning the public, especially when domestic laws are
either absent or silent on the issue or do not provide just and fair relief in
the eyes of the Court, often through their interpretation of the laws or
development of equitable principles.
V. CONCLUSION
Law is akin to an ongoing conversation
between two categories of law makers- judges and legislators-
who decide “what sort of society we must live in?”[49].
While judges decide upon concrete cases, the legislators create laws that
regulate the way we live in a society. In deciding such cases, the judges often
have to give in to the statutes created by the legislatures. If any such
statute is in contravention of any fundamental right conferred upon the citizen
of the country by the Constitution of India, Article 13 of the Constitution[50]
gives the power of judicial review to the Constitutional Courts to
declare a law void, if it is inconsistent with the Constitution, to the extent
of its inconsistency[51].
Courts have taken a stance
that have upheld the concept of “equitable jurisdiction”, by ensuring that laws
are in consistence with the fundamental guarantees of the Constitution and fill
in legislative voids or interpret laws in manner which benefit the larger
interests of the society. The discretionary role of the upper judiciary plays a
crucial role here. Supreme Court’s “equitable jurisdiction” also gains
importance against a background where social injustices peak. Under the contemporary
modern egalitarian legal system, the right to access justice has two prongs,
one is its accessibility to all and second being its quality of being just and
fair.
However, the answer to the
question, “what sort of society we must live in?” has not always led to the
best answer, the most fitting example being the Bhopal Gas Leak Tragedy Case[52],
where the inability of the Supreme Court to stand alongside the cause of the
victims left many Indians frustrated[53].
There was no reference in the Supreme Court order to any international
precedent regarding payment of damages; calculations done by the Supreme Court
showed that it compared the gas-leak disaster to a mere motor accident cases[54].
The case hastened the decline in equitable reliefs in environmental cases more
than in any other case.
It is important to
understand that the Supreme Court, as the guardian of the Constitution, has
made significant strides at strengthening the confidence of the people in
itself. This is also reflected in the increasing number of cases in the upper
judiciary. Between 2005 and 2011, the number of cases appealed to the Supreme
Court increased by 44.9 per cent while the number of cases accepted for regular
hearing increased by as mammoth 74.5 per cent while the number of cases
disposed of by the subordinate courts increased only by about 7.8 per cent.[55]
William Blackstone wrote,
“a court of equity and a court of law, as contrasted to each other, are apt
to confound and mislead us: as if the one judged without equity, and the other
was not bound by any law”[56].
Clearly, the onus is now on the Supreme Court as to how it wishes itself to be
perceived- as a harbinger of “equity” or a lender of “justice”, through it
remains undeniably clear that the Supreme Court’s climacteric role over the
past decades has established it as a model for the world to follow.
[5] Dastagir
Rajekhan Pathan, Role of Adversarial Model in Indian Criminal Justice: A
Critical Analysis, 5 INT. J. LAW MANAG. HUMANNIT. 1019, 1019 (2022).
[6] Margaret
Fordham, Comparative Legal Traditions- Introducing the Common Law to Civil
Lawyers in Asia, 1 AS. J. C. L. 1, 1 (2006).
[7] Justice
M. N. Venkatachaliah, KEEPING
THE SPIRIT OF THE COMMON LAW ALIVE, 5 NUJS L. REV. 291, 292 (2012).
[19] INDIA
CONST. art 141. The Article states: “141. Law declared by Supreme Court to be binding on
all courts”.
“142.
Enforcement of decrees and orders of Supreme Court and orders as to discovery,
etc
(1)The
Supreme Court in the exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may by order prescribe”.
[27] Workers
of M/s. Rohtas Industries Ltd. v. Rohtas Industries Ltd., A.I.R. 1990 S.C. 481
(India).
[32] Zygmunt
J.B. Plater, Statutory Violations and Equitable Discretion, 70 CALIF. L. REV.
524, 533 (1982).
[38] N.
Satish Gowda, Epistolary
Jurisdiction: A Tool to Ensure Human Rights of Have-Nots, 4 CMR UNI. J. CONTEMP.
LEG. AFF. 204, 204 (2022).
“21.
Protection of life and personal liberty
No
person shall be deprived of his life or personal liberty except according to
procedure established by law”.
[51] Mohd
Faiz Khan & Syed Umam Fatima Hasan, Doctrine of Judicial Review in
Indian Constitution, 2 INTL. J. LEG. SC. INNOV. 83, 84 (2020).
[53] Colin
Gonsalves, The
Bhopal Catastrophe: Politics, Conspiracy and Betrayal, 45 EPW 68, 69 (2010).
[56] William Blackstone, Commentaries on the Laws of England: A Facsimile
of the First Edition of 1765—1769 (1979).