Extracted from original papers

Reading on:
“STRENGTHENING LEGAL AND CONSTITUTIONAL BASIS OF
PUBLIC POLICY MAKING AND ITS GOVERNANCE”
Prof. Anil B. Suraj, IIM Bangalore

The following are select extracts taken from:

1. Anil B. Suraj, “Public Interest in Globalization: Role of the Judiciary in India” a paper
presented at the International Seminar on Public Interest Litigation and Globalization,
organized by the Institute of Human Rights, at Colombo, Sri Lanka, 10-12 March, 2006.
2. Anil B. Suraj, “Citizen-centric orientation in Regulatory Governance” a paper forming
part of the submissions made to the (Second) Administrative Reforms Commission,
Government of India, in March 2008.

The Constitution has charged the judiciary with the primary task of promoting the rule of
law. Limiting the power of the political executive; reviewing the content of reason in the law made
by the legislature; delivering remedies to those who have taken a recourse to judicial process – are
some of the several facets that judicial enforcement of ‘rule of law’ entails. Rule of law requires the
supremacy of law as opposed to the supremacy of the government or any political party. To the
noted English jurist A. V. Dicey, rule of law was “in the first place, the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power, and excludes the
existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the
government.”1

It is by means of fundamental charters that nations guarantee the rights of individuals;

regulate relations between individuals and the state; distribute power among the branches of
government; and establish an integrated judicial system to protect and guarantee the legitimacy of
the Constitution’s provisions and values. Within this framework, adjudication plays a role of utmost
importance as the means for safeguarding, through due process, the rule of law and the supremacy
of the Constitution.

1
A. V. Dicey, Introduction to the Study of the Law of the Constitution 120 (Indianapolis: Liberty Fund, 1982).

1
 Extracted from original papers

Judicial Process
The primary objective of any legal system is to guarantee the enforcement of rights as vested
by the Constitution and the laws made thereof. The maxim “ubi jus, ibi remedium” captures the
purpose of a legal system by stating that “where there is a right; there is a remedy”. Therefore, it is
commonly understood that only individual(s) whose rights have been violated could approach the
Courts for the appropriate judicial remedies. It is essential to first prove that a right exists; then that
the particular right has been violated; and therefore a remedy is warranted. Broadly, this process
pertains to the petitioner or the claimant proving the locus standi (refers to the standing of the
petitioner being in significant connection with the cause being disputed) to be entitled for the
remedies. Access to justice and the procedure of judicial remedies demanded that the functioning of
the Courts not be burdened by claims of such persons who are not directly/significantly related to
the disputed cause of action. It is relevant to mention that the nature and process of judicial
remedies that the Courts guarantee in response to criminal offences do not strictly require such
elaborate construction of rights.
A factor that adds to this burden is the involvement of the Government as a respondent in a
dispute. One of the most unique and the proudest features that is exclusive to the Constitution of
India is that it provides for a fundamental right to approach the Supreme Court for Constitutional
remedies against the State (Article 32 of the Constitution). Given the mandate of the Constitution to
the Supreme Court to enable “complete justice” (refer Article 142 of the Constitution), this
fundamental right to access judicial remedies assumes a lot of significance. However, a strict
understanding of the principle of locus standi would nonetheless dilute the guarantee of this
fundamental right. Not every person with a right has the ability to enforce it.
The civil remedies for administrative wrongdoing thus heavily depend upon the action of
individual citizens. In such an action, the individual is pitted against the State, always an unequal
contest. At his own expense, he must challenge the vast framework of State power with all its
resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an
extraordinary remedy, such as, an injunction or any of the Writs of the Constitutional Courts. Apart
from the manifold technical insufficiencies of these forms of action, the financial impediments to
such an action are staggering. Therefore, to rely upon such individual actions as the primary means
of checking administrative action is to effectively rely upon nothing.

2
 Extracted from original papers

It was in this background that the Supreme Court, through a set of decisions rendered in the
late seventies and early eighties [most notably in the matter of S.P. Gupta v. Union of India (1982)]
introduced the concept of “Public Interest Litigation” (PIL). It was then increasingly felt that in
various cases, because of the peculiar facts and the prevalent social and economic circumstances, the
petitioner approaching the Court may not be in a position to meet the burdensome requirements of
the judicial procedure and process of remedies. Towards enabling better enforcement of
fundamental rights, the Supreme Court gradually diluted the principle of locus standi by reasoning
that:
- It is the primary obligation and duty of the Court to protect, promote and enforce
fundamental rights,
- In the larger interest of the administration of justice,
- For the purpose of enforcing public duty and redressing public injury,
- Protecting public interest in the form of social and collective rights;
Courts and jurists world-wide have appreciate this innovative measure undertaken by the
Indian Supreme Court and much has been written about the benefits of PIL and in recent times, the
subject of much debate has been the abuse of this jurisdiction by vested interests.

Public Interest
In the matter of Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of
India,2 the Supreme Court rejected the challenge against certain directions issued by the RBI, which
provided for manner of investment of deposits by residuary non-banking companies and manner of
its disclosure in the books of account of companies. In pursuance of its reasoning, the Supreme
Court went on to state that – “The directions were designed to ensure that the interests of the
Subscribers/depositors is secured at all times” and that “thus there is a reasonable nexus between
the regulation and the public purpose, namely, security to the deposit money and the right to replace
repayment without any impediment, which undoubtedly, is in the public interest.” The impugned
directive was thus held to be within the power of the Reserve Bank of India with the purpose of
having to provide stable and identifiable method of operations and was thus held as constitutionally
permissible.
This decision reflects the trend of the Supreme Court in relying upon and reinforcing the
powers of a Regulatory authority towards achieving “public purpose”. In certain instances, the Court

2
(1992) 2 SCC 343

3
 Extracted from original papers

went one step further and normatively laid down that the State and its instrumentalities must adhere
to certain Constitutional principles in undertaking transactions that have a “public element”. In the
matter of LIC v. Consumer Education and Research Centre,3 the Supreme Court was faced with the
question as to whether a term insurance policy could be restricted to a class of persons, like
Government employees, and thereby denying its benefits to persons not belonging to that category.
Declaring that such exclusion would be unconstitutional, the Supreme Court reasoned that although
an insurer was free to evolve a policy based on business principles and conditions before floating the
policy to the general public, “the insurance being a social security measure, it should be consistent
with the Constitutional animation and conscience of socio-economic justice as enumerated in the
Constitution”. Continuing further, it was stated that “every action of the public authority or the
person acting in public interest or any act that gives rise to public element, should be guided by
public interest.”
Understandably, the emphasis on “public interest” was used with a twin objective – firstly to
put a check on the power of the Government, and secondly to make the State bear the responsibility
of securing public interest through the implementation of its policies. However, with the onset of
Economic Reforms and the allied imposition of Policy imperatives upon the Government, the
Judiciary too has shown a perceptible change in its attitude towards the Constitutional imperatives
of such economic policies.
Referring to the decisions rendered by thirteen-judge Bench in Kesavananda Bharati4 and
seven-judge Bench in Pathumma,5 the Supreme Court has observed the following points in the light
of reasonable restrictions on individual rights (emphases added by author):6
 “Courts interpret the constitutional provisions against the social setting of the country so as to
show a complete consciousness and deep awareness of the growing requirements of society,
the increasing needs of the nation, the burning problems of the day and the complex issues
facing the people, which the legislature, in its wisdom, through beneficial legislation, seeks to
solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic,
and elastic rather than rigid. This Court while acting as a sentinel on the qui vive to protect
fundamental rights guaranteed to the citizens of the country must try to strike a just balance

3
(1995) 5 SCC 482
4
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala – AIR 1973 SC 1461
5
Pathumma v. State of Kerala – (1978) 2 SCC 1
6
State of Gujarat v. M. M. Kureshi Jamat – (2005) 8 SCC 534 (emphases throughout as in original)

4
 Extracted from original papers

between the fundamental rights and the larger and broader interests of society so that when such a right
clashes with a larger interest of the country it must yield to the latter.”
 “The Legislature is in the best position to understand and appreciate the needs of the people as enjoined in the
Constitution. The Court will interfere in this process only when the statute is clearly violative of
the right conferred on a citizen under Part III (of the Constitution) or when the Act is beyond
the legislative competence of the legislature. The courts have recognized that there is always a
presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies on the party
which assails it.”
 “In judging the reasonableness of the restriction the court has to bear in mind the Directive Principles of State
Policy (as enshrined in the Part IV of the Constitution)”
 “The legislature must take intelligent care and deliberation in choosing the course which is
dictated by reason and good conscience so as to strike a just balance between the freedom in the article
and the social control permitted by the restrictions under the article.”
 “No abstract or general pattern or fixed principle can be laid down so as to be of universal
application. It will have to vary from case to case and having regard to the changing conditions, the
values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding
circumstances all of which must enter into the judicial verdict.”
 “However important the right of a citizen or an individual may be it has to yield to the larger
interests of the country or the community.”

Policy Domain
The recent trend of the judgements has been towards a “hands-off” approach on the aspect
of decisions relating to economic policies. The reason given is that there ought to be respect to the
independence of the Government to decide as to what is a suitable economic policy. In the matter
of Union of India v. Azadi Bachao Andolan,7 wherein the Indo-Mauritius Double Taxation
Avoidance Treaty was examined for its Constitutionality, the Supreme Court has clearly stated that
the power to enter into a Treaty is an “inherent part of the Sovereign power of the State” and that
the “Court cannot examine the merits or the demerits of a policy.” Furthermore, the Supreme Court
has ruled that “An act which is otherwise valid in law cannot be treated as non-est merely on the
ground that the underlying motive could result in economic detriment or prejudice to national
interest.” Stating that such Treaties and “forum shopping” policies are essential to provide

7
(2004) 10 SCC 1

5
 Extracted from original papers

incentives for attracting Foreign Investments, the Supreme Court has reasoned that “(T)he loss of
tax revenues could be insignificant compared to the other non-tax benefits to their economy.”
In the much debated decision of the Supreme Court in the matter of BALCO Employees
Union v. Union of India,8 it was held that the Government was like any other shareholder and could
dispose off its holding according to its own wish. This viewpoint has now been partially
differentiated in the judgement of the Centre for Public Interest Litigation v. Union of India,9
wherein the decision to disinvest in Hindustan Petroleum and Bharat Petroleum Corporations
without the basis of a Parliamentary approval was challenged. The Supreme Court constitutionally
analyzed and classified the setting up of a new public sector company and the consequent
shareholding of the Government as a separate head of expenditure and thus, a “new instrument of
service” within the Annual Budget, for which approval of Parliament is required for expenditure
from the Consolidated Fund of India under Article 113(2) of the Constitution. The Court then
queried should not a process of disinvestment from such a company also be undertaken only after
being expressly permitted by the Parliament? Therefore, it could be said that the primacy of the
Parliament and the Constitutional machinery has been upheld in this decision, thereby diluting the
absolute control of the Government over decision-making in the economic domain.
Economic Policy is being seen as an exclusive prerogative of the Executive and its expert
bodies. By distancing itself from the merits of such policies, the Judiciary has virtually granted
legitimacy to the unhindered policy making power of the Executive. Would it not amount to
compromising on the Constitutional principles of Social Justice and Economic Welfare?
Constitutions the world over are given the status of “higher law”, when compared to statutes,
legislations, executive orders and notifications, only so that the will of the people is not subordinated
to the temporary whims of the government.
The question asked by the Petitioners in the matters discussed above is not as to whether the
impugned policy is effective, but it is with respect to the Constitutional tenability of such a policy in
the light of the Fundamental Rights and the Directive Principles of State Policy. By subjecting the
welfare of the people to the economic policies as ordained by a political entity at any given period of
time, the Supreme Court appears to have discarded its role of being the guarantor of Public Interest.

Challenges to Administration of Justice

8
(2002) 2 SCC 333
9
(2003) 7 SCC 532

6
 Extracted from original papers

Oliver Wendell Holmes referred to law as “prophecies of what the courts will do in fact, and
nothing more pretentious.”10 By stating so, Holmes not only limited the implementation of law to
observable judicial behaviour, but also cast a normative duty on the process of administration of
justice. Law is widely evaluated by its ability to make a difference in the society; by its ability to
reflect the aspirations of the people who are governed by it. The judiciary, therefore, bears the duty
to investigate the public aspiration behind the sound action of the law, in order to deliver justice.
What the people expect is a justice system that is more accessible and easier to use; prompt
as well as effective judicial redress in response to various needs; and the execution of accurate and
proper apprehension and punishment of offenders through fair procedures. In the case of both civil
justice and criminal justice, it is necessary to strongly promote the coordination, based on the
concept of the rule of law, of an institutional base for the justice system responding to such public
expectations. For this to be achieved, it is imperative for the courts to evolve a comprehensive
response to emerging areas of disputes, for instance, intellectual property rights, cyber crimes,
commercial/securities/economic disputes.
With the innovations in information technology, it will become common for tremendous
amount of information, funds and materials to frequently cross borders, and global interdependence
and influence will grow remarkably stronger. There shall be conflicting demands – on the one hand
to alter and unify various systems and practices premised on national borders, while at the same
time, social and economic activities shall require greater attention within the nations. It is urgent to
accurately check illegality based on clear and fair rules as well as to strengthen the role of the justice
system in providing fair and prompt remedies to people whose rights or freedoms have been
infringed and to reinforce the ability to deliver on a global basis.
The Judiciary shall have to actively respond to social needs and to make its presence felt in
the provision of fair and prompt dispute resolution methods that support a free and fair society and
efficient market system; provide an accurate response to international organized crime and the
management of various crises; make the guarantee of human rights in every aspect of society;
establish corporate governance, including strategic risk management and respect for the law;
strengthen the handling of intellectual property, information technology, and financial technology as
a matter of national strategy; etc..

10
Oliver Wendell Holmes, “The Path of Law”, in Collected Legal Papers (New York: Harcourt, Brace and Howe,
1920), 167-202, at p.173. Justice Holmes, who advocated “judicial restraint”, is hailed as a Constitutional Jurist for
his various judgements and opinions given during his 30 year tenure (1902-1932) as a Justice of the US Supreme
Court.

7
 Extracted from original papers

The object here is to project the role played by the courts in moderating majoritarian politics
and protection of equal justice in terms of minority rights and social justice to the disadvantaged
sections of people. This has led the Court to adopt proactive strategies (which are criticized as
judicial activism) and innovate new instruments including public interest litigation, thereby enlarging
access to justice to vast masses of poor and disadvantaged people who would otherwise have gone
unrepresented before the courts. A considerable body of human rights jurisprudence has been
generated in the process which has influenced not only judicial proceedings, but also the system of
governance by the other two wings of the State as well.

The following judicial strategies may inevitably need to form essential features of
administration of justice in the globalized world:

1. Judicial incorporation of International Covenants and Treaty obligations

A judicial trend, quite pronounced in recent times, in respect of human rights administration
in India is the increasing tendency to invoke international human rights jurisprudence to interpret
domestic laws and practices. Lawyers and judges in India are actively involved in importing best
practices from all over the world to improve human rights administration. In this process there is a
great deal of internationalization of human rights law and its administration which is to the
advantage of human rights everywhere. In terms of globalization too, the courts shall have to
incrementally refer and follow the trend of interpretative jurisprudence as emerging from
international bodies for dispute settlement. The recommendations and rulings of the Dispute
Settlement Body of the World Trade Organization shall form the bedrock of international trade in
due time. With the effect of multilateralism warranting the adherence to internationally accepted
principles, it is difficult for any single country to chart a different course in the administration of
municipal law.
In engendering the principles of gender justice, the Supreme Court has referred to the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)11 in
quite a few cases to deliver a gender-friendly interpretation compatible within the prevalent
framework of law.12 In enlarging the scope of Article 21 of the Constitution and the rights enshrined

11
Ratified by India in 1993, albeit with a few reservations.
12
Vishaka v. State of Rajasthan – (1997) 6 SCC 241 (detailed guidelines on prevention of sexual harassment at
workplaces were laid down on the basis of CEDAW obligations and in the absence of national laws in this regard);

8
 Extracted from original papers

therein, the Supreme Court has continually referred to the leading international covenants and
human right declarations to deliver justice to the needy.13

2. Proactive role in monitoring the enforcement of decisions

A second notable feature of the Indian human rights management scenario involving the
Courts is the rights-oriented change in the style of administering justice, especially in environmental
management and criminal justice administration. In fact, the Courts are often accused by certain
circles in government of trespassing into areas reserved for the executive branch. However, such
human rights initiatives of the High Courts and Supreme Court, are welcomed appreciably by the
people, and have been instrumental in setting the tone of environmental management and
intervening to check abuse of power and lawlessness in criminal justice administration.
In Munir Alam v. Union of India,14 the role of the Police in the firing near the lodge of the
Vice-Chancellor of Aligarh Muslim University was in question. According to the petitioner, the
investigation into the incident of firing was “conducted in a wholly slip shod and a biased manner”
and therefore, inter alia prayed that a fair investigation be conducted into the incident through the
Central Bureau of Investigation (CBI). Not being satisfied with the statements filed by the
Government, the Supreme Court felt that the matter required to be inquired into by a competent
judicial officer. Accordingly, the learned Sessions Judge, Aligarh was directed to inquire into the
matter himself or to get it inquired by a competent officer, not below the rank of an Additional
Sessions Judge and to submit the report of inquiry to this Court within two months from the date of
communication of the order.
In compliance of the orders passed by the Supreme Court and the consequent order of the
Government, the Chief Development Officer, Aligarh and the Superintendent of Police, Rural Area,
Aligarh were appointed as the Inquiry Officers in the matter. The Supreme Court took strong
exception to the fact that the “enquiry” was conducted by two officers of the State Government and
not by the Judicial Officer as was ordered. Querying as to – “(H)ow could a direction of this Court
to get the matter investigated by an independent Agency/Senior officer, be understood to imply to

Municipal Corporation of Delhi v. Female Workers (Muster Roll) – AIR 2000 SC 1274 (CEDAW was cited as a
basis for providing maternity benefits within the terms of the employment contract).
13
See, Maneka Gandhi v. Union of India – AIR 1978 SC 597 (Right to travel abroad); Minerva Mills v. Union of
India – AIR 1980 SC 1789 (Supremacy of Directive Principles of State Policy in Constitutional interpretation);
Francis Coralie v. Union Territory – AIR 1981 SC 746 (Right against torture); Kadra v. State of Bihar – AIR 1981
SC 939 (Right to Speedy Trial)
14
(1999) 5 SCC 248

9
 Extracted from original papers

get an enquiry conducted by Officers of the status of Chief Development Officer and the
Superintendent of Police (Rural),” it was noted that “the manner in which the inquiry was got
conducted by the State Government shows that the indulgence shown by this Court to the State
Government to have the matter investigated by some independent agency etc., was misused.”
Accordingly, the Director, CBI was instructed to hold an enquiry/investigating into the alleged
incident and into the related matters, keeping also in view the allegations made in this writ petition.
It was further stated that the investigation may be conducted, by the Director CBI, through an
officer, not below the rank of a Senior Superintendent of Police (CBI), and the CBI was requested
to have the investigation carried out expeditiously and as for as possible within four months from
the date of the order.
Clarifying a previous order referring a matter to the National Human Rights Commission
(NHRC), in Paramjit Kaur v. State of Punjab,15 the Supreme Court stated that – “there is no reason
why the Commission, at the request of this Court, cannot investigate or look into the violations of
human rights” even though the period of limitation might have expired. It was further stated that –
“All authorities in the country are bound by the directions of this Court” and have to act in aid of
the NHRC. It was also clarified that the NHRC would function pursuant to the directions issued by
the Court and not under the Act under which it is constituted.

3. Greater involvement in core areas of public interest

Environment, Labour, Education and Health form the essential sectors requiring active
intervention of the judiciary in promoting equality and principles of equity and ensuring justice to all.
This task, however, is going to be very arduous in the face of increasing private interests and capital
market infusions into these areas of economic activities. Delivering the judgement in the matter of
T.N. Godavarman Thirumalpad v. Union of India,16 wherein the issue of sustainable use of forests
was being considered, Justice Y.K. Sabharwal, the then Chief Justice of India, emphasized that –
“Any programme, policy or vision for overall development has to evolve a systemic approach so as
to balance economic development and environmental protection. Both have to go hand in hand. In
ultimate analysis, economic development at the cost of degradation of environments and depletion
of forest cover would not be long lasting. Such development would be counter productive.”

15
(1999) 2 SCC 131
16
JT 2005(8) SC588

10
 Extracted from original papers

Ascribing a value to the loss caused to the environment, the Court has further added – “The
point in issue is whether before diversion of forest land for non- forest purposes and consequential
loss of benefits accruing from the forests should not the user agency of such land be required to
compensate for the diversion. If so, should not the user Agency be required to make payment of
Net Present Value (NPV) of such diverted land so as to utilize the amounts so received for getting
back in long run the benefits which are lost by such diversion? What guidelines should be issued for
determination of NPV? Should guidelines apply uniformly to all? How to calculate NPV? Should
some projects be exempted from payment of NPV? These are the main aspects which require
examination and determination in the backdrop of various legislations which we would presently
notice.”17
Terming that “economics of law is the essence of labour jurisprudence”, Justice V.R.
Krishna Iyer has quoted Justice Rajamannar in the matter of Gujarat Steel Tubes Ltd. v. Gujarat
Steel Tubes Mazdoor Sabha,18 and observed that – “The doctrine of ‘laissez faire’ which held sway in
the world since the time of Adam Smith has practically given place to a doctrine which emphasizes
the duty of the state to interfere in the affairs of individuals in the interests of the social well-being
of the entire community.” He further explained that “the democratic idea of freedom, for instance,
must lose its nineteenth century meaning of individual liberty in the economic sphere, and become
adjusted to new conception of social duties and responsibilities.”
In the matter of Unni Krishnan v. State of Andhra Pradesh,19 a Constitution Bench of the
Supreme Court framed a scheme governing admission to professional colleges. This was done with a
view to eliminate the evil of capitation fees and the absolute discretion which the managements of
colleges were exercising in the matter of admission of students. However, several problems and
difficulties in the matter of implementation of the said scheme were brought to the notice of the
Supreme Court by the governments, managements, students and their parents. In particular, it was

17
Observing further on the calculation of the Net Present Value, the judgement economically analyzes that – “The
NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital. Forestry is a public
project. It is important to bear in mind that a benefit received today is worth more than that received later. The
benefit received today is in fact ‘cost incurred’ today. Time value of the cash inflow/outflow is important in
investment appraisal. NPV is a method by which future expenditures (costs) and benefit are levelised in order to
account for the time value of money. The object behind NPV is to levelise costs. What is the value of Rupee today
would not be the value of Rupee say 50 years later. Cost incurred or to be incurred in 2050 have to be discounted by
using appropriate parameters like rate of discount, gestation period, ratio of deflators to GDP. Therefore, expenses
incurred in each year between say 2005 and 2050 have to be brought down to their present values by using
appropriate discount rate in the NPV.”
18
AIR 1980 SC 1896
19
(1993) 1 SCC 645

11
 Extracted from original papers

being complained that the gap in the fees paid by the “free students” and “payment students” was
stated to be too large and that contrary to the intention of the scheme, most of the students from
the well-to-do families were taking away free seats leaving the payment seats to students from the
rural areas and backward communities.
Therefore, in the matter of T.M.A. Pai Foundation v. State of Karnataka,20 the Supreme
Court took the opportunity to procure suggestions and comments from the State Governments and
Union of India regarding the functioning of the Scheme. The concerned Ministries of the
Government were also asked to indicate if there was any modification/change in the working of the
Scheme. In response to the same, some of the State Governments, statutory councils, managements,
students and other interested persons came forward with suggestions. In order to resolve the
situation in a timely manner for the academic year 1995-96, the Supreme Court framed detailed
directions to be implemented by the involved stakeholders, which included specific issues like – Fee
structure; NRI Quota; Minority institutions’ intake; and a direction to the Reserve Bank of India to
evolve a scheme for extending study loans to the students studying in medical and dental colleges in
private professional colleges on a priority basis and issue appropriate directions to the Nationalized
Banks (within a period of ten days).
In the matter of State of Maharashtra v. Manubhai P. Vashi,21 it was brought to the notice of
the Supreme Court that a Grant-in-aid scheme of the State of Maharashtra was made available to
recognized private professional colleges, but not to non-Government law colleges. The Supreme
Court stated that – “One facet of education cannot be selected for hostile discriminatory treatment
whatever may be the other laudable activities pursued by the Government in the matter of education
or its discretion to assign the order of priorities in different spheres of education. In a fit case, it is
open to the Court to direct the executive to carry out the directive principles of the Constitution,
when there is inaction or slow action by the State.” It was observed that such discriminatory practice
against law colleges amounted to an infraction on the “quality” of legal aid as is mandated to be
provided by the State under Article 39A of the Constitution. Therefore, the State Government was
directed to extend the grant-in-aid scheme to all the recognized private law colleges too on the same
criteria as applicable to institutions imparting professional education in other disciplines.
Furthermore, it was stated that the Government shall take steps to ensure that the aided institutions
abide by all rules and regulations of the concerned authorities for recognition and affiliation

20
(1995) 5 SCC 220, a more comprehensive judgment on the same matter was delivered in October 2002.
21
(1995) 5 SCC 730

12
 Extracted from original papers

including such of those rules and regulations in the matter of recruitment of teachers, staff, their
conditions of service, syllabus, standard of teaching and discipline.
In the matter of Asheesh Pratap Singh v. Sachdeva,22 the concern was that of certain
students who had passed the required entrance examinations were allotted to a College that did not
have the necessary infrastructure and which came to be closed thereafter. Though the Medical
Council of India (MCI) and the State Directorate General of Medical Education were given enough
time to re-allocate the institutions to the concerned students, they failed to do so. Finding it to be
highly inequitable to make the students take the entrance exam again, the Supreme Court issued
directions to the following effect – “The seats that have to be provided to these students shall be
allocated in different colleges after finding out the total infrastructure available in each of the
colleges which shall be adjusted over the time by reducing the intake in the next years so that the
overall strength of the college does not get enhanced and the infrastructure is available to all the
students within the intake allocated to the college.” The MCI and the Directorate General of
Medical Education were directed to comply with this process and make a report to the Court within
a month.
Declaring emergency medical treatment as a fundamental right, in the matter of Paramanand
Katara v. Union of India,23 the Supreme Court has held that in cases of emergency treatment being
necessary, it is the duty of the Doctor to treat the patient, irrespective of the requirements or
formalities that need to be undertaken as per the law. Pursuant to the same, in Paschim Banga Khet
Mazdoor v. State of West Bengal,24 the Supreme Court observed that – “The Government hospitals
run by the State and the medical officers employed therein are duty bound to extend medical
assistance for preserving human life. Failure on the part of a Government hospital to provide timely
medical treatment to a person in need of such treatment results in violation of his right to life
guaranteed under Article 21.”
Furthermore, the Supreme Court pronounced directions pertaining to the provision of
medical facilities for emergency cases – “Adequate facilities are available at the Primary Health
Centres where the patient can be given immediate primary treatment so as to stabilize his condition;
Hospitals at the district level and Sub-Division level are upgraded so that serious cases can be
treated there; Facilities for giving specialist treatment are increased and are available at the hospitals

22
(2003) 2 SCC 309
23
(1989) 4 SCC 286
24
(1996) 4 SCC 37

13
 Extracted from original papers

at District level having regard to the growing needs; In order to ensure the availability of bed in an
emergency at State level hospitals there should be a centralized communication system so that the
patient can be sent immediately to the hospital where bed is available in respect of the treatment
which is required; Proper arrangement of ambulance is made for transport of a patient from the
Primary Health Centre to the District hospital or Sub- Division hospital and from the District
hospital or Sub-Division hospital to the State hospital.” It was added that – “Since it is the joint
obligation of the Centre as well as the States to provide medical services it is expected that the
Union of India would render the necessary assistance in the improvement of the medical services in
the country on these lines.” In Common Cause v. Union of India,25 the Supreme Court responded
to the concern of HIV infected blood being donated to the Blood Banks across India by providing
detailed instructions as to the procedures to be followed before a donor is made to donate blood.
Stating the long-term and the short-term measures to be undertaken, and for immediate
implementation of the directed set of procedures, the Supreme Court laid down that a National
Council on Blood Transfusion should be established as a Society under the Union Ministry of
Health. As a matter of caution, this decision has incorporated “mandatory testing” of the potential
donors as a measure to screen the infected donors at an early stage.

4. Formulation of innovative remedies

Given the variety of matters that shall have to be resolved by the High Courts and the
Supreme Court in the coming years, the conservative form of remedies as laid out in the legal
instruments could be found wanting. It would be the duty of the Supreme Court to creatively tailor
the interpretative tools in a manner as to provide the adequate remedies as prayed for.
In the matter of Kapila Hingorani v. State of Bihar,26 the liability of the State Government
towards payment of arrears of salaries to the employees of the State owned corporations, public
sector undertakings or the statutory bodies was in question. Referring to the constitutionally cast
responsibilities on a State, such as the Directive Principles of State Policy, and the judicial principles
of “deep and pervasive control”, the Supreme Court held that – “the State is directly or vicariously
liable to pay salaries/remunerations of the employees of the public sector undertakings or the
Government companies in all situations” and that “the State cannot escape its liability when a
human rights problem of such magnitude involving the starvation deaths and/or suicide by the

25
(1996) 1 SCC 753
26
(2003) 6 SCC 1

14
 Extracted from original papers

employees has taken place by reason of non-payment of salary to the employees of Public Sector
Undertaking for such a long time.” For the purpose of resolving the financial problems, the
Supreme Court issued few interim directions too and directed the formation of a committee not
consisting of more than three members chaired by a retired High Court Judge to scrutinize the
assets and liabilities of the public sector companies and submit a report to the High Court.
In Vineet Narain v. Union of India,27 a much discussed matter before the Supreme Court, a
Public Interest petition was filed complaining against the lack of promptitude by the Central Bureau
of Investigation in matters involving accusations of economic crimes against high dignitaries. The
issue was whether it is within the domain of judicial review to activate the investigative process
which is under the control of the political executive.
The Court reasoned that it found it necessary to direct “the CBI not to report the progress
of the investigations to the person occupying the highest office in the political executive”; this was
done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the
credibility of the investigations. It was, therefore, decided to direct the CBI and other agencies to
complete the investigation expeditiously, keeping the Court informed from time to time of the
progress of the investigation. In short, the innovative procedure adopted was of ‘continuing
mandamus’, whereby the writ of mandamus (a judicial command to an authority to perform the
mandated duty) is applicable for an unstipulated period of time for preventing any miscarriage of
justice.
In the matter of Vishal Jeet v. Union of India,28 the Supreme Court dealt with the problem
of trafficking of women and children by refusing to merely ask the CBI to investigate on a country-
wide basis. Instead the Court gave detailed instructions to the State Governments to speed up the
investigations into such cases and to set up a separate Advisory Committee for effective monitoring
and guidance within their respective zones consisting of the Secretary of the Social Welfare
Department or Board the Secretary of the Law Department, sociologists, criminologists, members
of the women’s organizations, members of Indian Council of Child Welfare and Indian Council of
Social Welfare as well as the members of various voluntary social organizations and associations etc.
A similar initiative was also suggested in countering the problem of neglected children of
prostitutes and the proper implementation of welfare schemes pertaining to such children.29

27
AIR 1998 SC 889
28
AIR 1990 SC 1412
29
Gaurav Jain v. Union of India – (1997) 8 SCC 114

15
 Extracted from original papers

5. Profound emphasis on principles of equity and social justice

‘Social justice’, being an objective under the Preamble of the Indian Constitution, shall have
to become the guiding factor for administration of justice in public interest. In Sadhuram v. Pulin,30
the Supreme Court observed that – “though judges have taken oath to administer justice according
to law, there is no bar on them to do ‘social justice’ if that can be done without depriving any person
of his existing legal rights.” It has always been the concern of the Court to eschew legal technicalities
in favour of a higher duty of dispensing social justice. The advent of Public Interest Litigation as a
tool for promoting better access to justice was just the beginning of the changing foundation of
Indian judiciary towards delivering justice that is measurable in social terms.
Aiming to deliver social justice does not necessarily imply that prevailing economic rationale
is to be overlooked. To marry the two into the interpretative process ought to be the primordial
objective. In the matter of Novartis AG v. Mehar Pharma,31 the Bombay High Court had an
occasion to manifest such a blend of justice. Novartis claimed an injunction against Mehar Pharma
from producing certain anti-cancer drugs for which it had procured the Exclusive Marketing Rights
(EMR) in India in 2003. It was submitted by Novartis that keeping in mind the fact that they have
spent millions of dollars in research and development of the said drugs, public interest demanded
that it be protected appropriately by the Court. On the other hand, Mehar Pharma claimed that
being the largest supplier of this anti-cancer drug in the market any adverse order which may be
passed by this Court would completely stifle all avenues of supply of this life-saving drug and leave
the patients at the mercy of the erratic and costly supply by Novartis.32
The Court considered the rival submissions and observed that in consideration of the EMR
being procured recently and the possibility that “even if the plaintiffs (Novartis) ultimately succeed,
the loss or injury that may be caused to the plaintiffs is not incapable of being compensated in terms
of money”, it was held that:
 “The aspect of balance of convenience has also to be answered in favour of the defendants
(Mehar Pharma), especially because the drug in relation to which EMR is granted is an anti-
cancer drug, is a life saving drug and the plaintiffs do not manufacture the drug in India but

30
AIR 1984 SC 1471
31
2005 (30) PTC 160 (Bom)
32
It was submitted that the drug of Novartis costs Rs. 1000 whereas the drug as sold by the Mehar Pharma costs
about Rs. 90. The cost for an average patient was stated to work out to Rs. 4000 per day if he were to be prescribed
the imported version and would work out to only Rs. 300 per day if the generic drug was used.

16
 Extracted from original papers

import it from foreign country. The defendants have stated that the demand of capsules is
over 30,00,000 per month. This does not appear to have been disputed by the plaintiffs. It is
clear that the demand of this drug in India is very large, it is a life saving drug. The
defendants manufacture the drug in India. The plaintiffs do not manufacture the drug in
India. They state that they will import required quantity of the drug from a foreign country.
Therefore, the plaintiffs will rely entirely on the international transport system for making
the drug available in India in required quantity.”
 The Court aptly noted that – “(I)n case interim injunction is granted in favour of the
plaintiffs, the manufacturing and marketing network of the defendants so far as the drug is
concerned would be dismantled. If due to any problem, the plaintiffs cannot make available
the drug in required quantity in India, it obviously will be disastrous for the patients. This
consequence is foreseeable, therefore, the Court should not pass any interim order which
may possibly lead to such a situation.”
 It was further emphasized that – “The aspect of the difference in price of the product of the
plaintiffs and the defendants also cannot be ignored, especially at the stage of considering
the question whether the plaintiffs are entitled to any interim relief.”
It is this nature of balanced judicial review that is to be exhibited by the Courts on a regular
scale with respect to matters pertaining to free market trade and ensuring fairness and equitable
considerations.

Ultimate Responsibility of the Courts

The foundational assumption underlying judicial review over executive discretion is that it is
not for the courts to substitute their choice as to how the discretion ought to have been exercised. It
is not for the courts to intervene, reassess the matter afresh and decide accordingly. Decisions as to
political and social choice are made by the legislature, and to sanction judicial intervention simply
because the court would prefer a different choice to that of the executive would do disservice to the
fundamental premise of ‘separation of powers’.
Explaining the complexity involved in the adjudication of issues relating to economic laws,
Justice R.C. Lahoti has quoted Justice Frankfurter and observed, in the matter of State of West
Bengal v. Kesoram Industries,33 that – “In the utilities, tax and economic regulation cases, there are
good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature

33
(2004)10 SCC 201

17
 Extracted from original papers

after all has the affirmative responsibility. The courts have only the power to destroy, not to
reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the
liability to error, the bewildering conflict of the experts, and the number of times the judges have
been overruled by events, self-limitation can be seen to be the path to judicial wisdom and
institutional prestige and stability.”
While it is accepted that it is not for the courts to substitute judgement, it is also recognized
that there should be some control over the rationality of the decisions made by the executive. The
over-arching principle that is to be emphasized is the desire to fashion legal criteria to control
discretionary decision-making, by emphasizing the aspect of the separation of powers that
legitimizes judicial control, without leading to a substitution of judgement or an intrusion on merits,
thereby placing an accent on judicial restraint too.
The jury is still out on the degree of deference that the judiciary has to accord to the
executive and the legislature, and the objective conditions to determine the same. Though the trend
of pronouncements by the apex judiciary seem to accommodate an active pursuit of constitutional
goals despite the diverse socio-cultural influences, the increasingly fragmented political framework
and an economy that is now being founded on market forces, would exact considerable amount of
judicial creativity to protect and promote public interest.

18