Consti Rough Draft

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CONTENTSCONTENTS .................................................................................................................. 1

CHAPTER I................................................................................................................... 2

INTRODUCTION ........................................................................................................... 2

Justice P.N. Bhagwati: An overview ......................................................................... 2

1.2 PURPOSE AND OBJECTIVE OF THE STUDY AND THE METHODOLOGY ADOPTED.

................................................................................................................................ 4

CHAPTER II............................................................................................................. 5

IMPACT ON INDIAN JUDICIARY .................................................................................. 5

2.1 INDEPENDENCE OF JUDICIARY FROM JUSTICE BHAGWATIS

STANDPOINT ........................................................................................................... 5

CHAPTER III.......................................................................................................... 11

EVOLUTION OF JAIL JURISPRUDENCE ........................................................................ 11

4.1 DEVELOPMENT OF JAIL JURISPRUDENCE: INTRODUCTION .............................. 11

4.2RECOGNITION OF PRISONERS RIGHT TO FREE LEGAL AID ............................... 12

4.3 ARTICLE 21 ASSIMILATION IN JAIL JURISPRUDENCE ........................................ 13

CHAPTER IV .............................................................................................................. 15

ROLE IN EVOLVING ENVIRONMENTAL JURISPRUDENCE ............................................ 15

3.1 INDIAN ENVIRONMENTAL JURISPRUDENCE: ROLE OF JUSTICE BHAGWATI......15

CHAPTER V ............................................................................................................... 17

CONCLUSION ............................................................................................................ 17

REFERENCES ............................................................................................................. 19

LIST OF CASES .......................................................................................................... 20


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CHAPTER I

INTRODUCTION

Justice P.N. Bhagwati: An overview

The Judge is not a mason but an architect,

There is no ad hocism about a truly great Judge

He must be absolutely clear where he is going.

- Praful Natwarlal Bhagwati1

Justice Bhagwati has always held a very distinguished stand throughout his career,

known as a judge of great political vision. No doubt Justice Bhagwatis public life preceded his

personal life. He is counted among the patriotic Indians of his times, who had whole-heartedly in

the Indian Freedom Movement. He participated actively in the Quit India Movement, responding

to Mahatma Gandhis call in 1942. In pursuance of the same, he had to be underground for four

months to avoid arrest.

As regards his professional career, he graduated in Maths (hons) in Ist class from

Elphinstone College, Bombay in 1941, where he was also appointed as a fellow. Thereafter he

took his law degree in Ist class form Government Law College, Bombay. He started his practice

from high Court, Bombay and became a judge of Gujrat high Court in 1960. In 1967, he was

appointed as the Chief Justice of Gujrat high Court. He was elevated as judge of Supreme Court

in the year 1973. And was finally appointed as the Chief Justice of India in 1985 after which he

retired in December 1986. Justice Bhagwati also presided over various committees in thecapacity of chairman.

1The Supreme Court and its Chief, Economic and Political Weekly, Jan 3-10,1987.


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I. He was the chairman of the Legal Aid Committee appointed by the Government of

Gujrat for suggesting ways and means of providing free legal aid and advoce to the

poor and weaker section of the community

II. He also acted as the chairman of the State Legal Aid Committee or running the pilot

project of Free Legal Aid and Advice in Gujrat.

III. Chairman of the Judicial Reform Committee set up by government of Gujrat.

IV. Chairman of the Gujrat Kendra of Bhartiya Vidya Bhawan2.

Justice Bhagwati in his own capacity and in several respects has initiated the current

modernization of the Indian state. His principal initiatives which manifest his ideology have

borne testimony to the same. Justice Bhagwati had been a judge of Supreme Court for almost a

decade before he was appointed the chief Justice of India in 1985. And since then his judgments

have holded immense value and significance encapsulating and expounding various significant

principles of administrative laws.

Justice Bhagwati in his boldness and visionary zeal has effected revolutionary changes in

the various fields of laws. Justice Bhagwati changed and expanded the commercial laws of the

country, which included expanding law of promissory estoppel distinguishing between rights of

property owner and the political detenu. However his principal initiatives would always revolve

around evolving the Indian environmental jurisprudence, giving new meaning to concepts like

social justice by introducing Public Interst Litigation and expanding the scope of fundamental

rights under Article 21to include within its ambit variety of other rights.

2 http://supremecourtofindia.nic.in/judges/bio/pnbhagwati.html
http://supremecourtofindia.nic.in/judges/bio/pnbhagwati.htmlhttp://supremecourtofindia.nic.in/judges/bio/pnbhagwati.htmlhttp://supremecourtofindia.nic.in/judges/bio/pnbhagwati.html


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1.2 PURPOSE AND OBJECTIVE OF THE STUDY AND THE

METHODOLOGY ADOPTED.

The specific objective behind undertaking this project is to understand the ideology of

Justice Bhagwati which is manifested in his judgments and how it has evolved over the

years to give ways to various jurisprudential principles. Thus the focus area will be the

principles of law or jurisprudence he initiated or expounded. In this project, the researcher

shall concentrate on the study of Justice Bhagwatis contribution to the realm of social

justice by introducing Public Interst Litigation, in the independence of judiciary, jail

Jurisprudence, and his other initiatives like Poverty oriented Jurisprudence, Free Legal Aid,

and a brief overview of his contribution towards environmental jurisprudence.

The methodology that has been adopted for this study is doctrinal research. The

resources accessed to being the case laws, scholarly opinions, and other articles of eminent

jurists.


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CHAPTER II

IMPACT ON INDIAN JUDICIARY

2.1 INDEPENDENCE OF JUDICIARY FROM JUSTICE

BHAGWATIS STANDPOINT

Judicial independence is a central component of any democracy and is crucial for

attainment of other principles like separation of power, the rule of law, and human rights 3.

Independence of Judiciary in respect of other branches of government, or other political or

administrative variables, trade unions, public opinions, and mass media makes Judiciary a

distinguished organ of the state. This distinguishing feature however seems to be derived on

the one hand, from consideration of social significance of the judiciary for the settlement of

conflicts of vital interests as an impartial third party and, on the other hand, from the

extremely scientific and technical nature of judicial questions, the solution of which requires

the most highly conscientious activities of specially educated and trained experts. 4

It is important to note here that both these features have been addressed by Justice

Bhagwatis in his judgments. According to justice Bhagwati Independence of Judiciary is

conducive for the attainment of goals like social justice, thereby encapsulating the first

feature in his approach. For it empowers judiciary to address and redress the grievances of

the poor and vulnerable sections of society by liberating it from any concern as to who has

committed wrong, thereby also upholding the beacon of supremacy of rule of law on the

other hand. If the judgment of Justice Bhagwati in S.P. Gupta & others v. President of India

is taken into consideration, it becomes clear that Justice Bhagwati has addressed these issues

very judiciously.

3Judicial Independence: The Contemporary Debate (Shimon Shetreet & Jules Descheves eds 1985)4International Law Reports, E. Lauterpacht. Sourced from http://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepa

ge&q=independence%20of%20judiciary&f=false[last accessed on 28th oct,2009]
http://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepage&q=independence%20of%20judiciary&f=falsehttp://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepage&q=independence%20of%20judiciary&f=falsehttp://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepage&q=independence%20of%20judiciary&f=falsehttp://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepage&q=independence%20of%20judiciary&f=falsehttp://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepage&q=independence%20of%20judiciary&f=falsehttp://books.google.com/books?id=ZIWcxX5jB5MC&pg=PA328&dq=independence+of+judiciary&lr=&as_brr=3&ei=bhbwSvjEAoGQkAS5rZCuDA#v=onepage&q=independence%20of%20judiciary&f=false


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One principle which runs through the entire fabric of the constitution, it is the principle

of the rule of law and 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 thereby making the rule of law

meaningful and effective

Judges should be of stern stuff and tough fibre, unbending before power,

economic or political, and they must uphold the core principle of the rule of law which

says Be you ever so high, the law is above you. This is the principle of independence

of the judiciary which is vital for the establishment of real participatory democracy,

maintenance of the rule of law as a dynamic concept and delivery of social justice to the

vulnerable sections of the community.5

Here Justice Bhagwati has adequately illustrated the role of judiciary in upholding the rule of law

as well its role in steering the cause of social justice to the needy and poor. Apart from this

another very crucial aspect that Justice Bhagwati has dealt with is the role of judges. One of the

foundation of independence of Judiciary addressed in Siracuses Draft Principles6 on the

independence of Judiciary is independence of individual judge and the other is independence of

judicial branch. The former, dealing with the independence of judges, in this regard Justice

Bhagwati has addressed another corresponding aspect that is the nature or disposition of judges

which is congenial in attaining independence of the individual judge. According to Siracusesdraft principles independence of individual judge would mean that every judge is free to decide

matters before him in accordance with his assessment of the facts and his understanding of the

law, without any improper influences, inducements, or pressures, direct or indirect, from any

quarter or for any reason. Stern and unbending disposition also has a corresponding role to

play in ensuring free assessment as it eliminates any scope of any form of influence, whatsoever.

For if the judge is stern and unbending pressures, inducement, would yield no result.

The universal nature of the principle of independence of judiciary is reflected in the

words of Chief Justice Lamer of the Supreme Court of Canada: judicial independence is

5 S.P. Gupta & others v. President of India & others AIR 1982, SC 152.6 Cited in Aharon Baraks, The judge in a Democracy, 2006, pg. 77, Princeton Univ. Press.


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essential for fair and just dispute resolution in individual cases. It is also the life blood of

constitutionalism in democratic societies.7 Congruency can be seen in Justice Bhagwatis stand

with regards the pervasive nature of the principle of independence of judiciary in S.P. Gupta &

others v. President of India & others case8

the principle of independence of judiciary is not an abstract conception but it is

a living faith which must derive its inspiration from the constitutional character and its

nourishment and sustenance from the constitutional values.

2.3 PUBLIC INTEREST LITIGATION: AN INSTRUMENT OF SOCIAL

CHANGE

One of the novel initiatives that secures accountability is the development of Public

Interest Litigation. This evolution can be traced to the pioneering work of Justice Bhagwati in

S.P. Gupta v. Union of India9 where he had articulated the concept of Public Interest Litigation

by remarking Where a legal wrong or a legal injury is caused to a person or to a determinate

class of persons by reason of violation of any constitutional or legal right or any burden is

imposed in contravention of any constitutional or legal provision or without authority of law or

any such legal wrong or legal injury or illegal burden is threatened and such person or

determinate class of persons by reasons of poverty, helplessness or disability or socially or

economically disadvantaged position unable to approach the court for relief, any member of

public can maintain an application for an appropriate direction, order or writ in the High Court

under Article 226 and in case any breach of fundamental rights of such persons or determinate

class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or

legal injury caused to such person or determinate class of persons. Justice Bhagwatis sensitivity

7Beanregand v. Canada [1986] 2.S.C.R. 56, 70.8 AIR 1982 SC 1529 A.I.R. 1982, SC. 149.


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towards the disadvantaged section earned him the label of being an independent pro-poor

judge10. This attitude characterized his ideology which was manifested in his judgements.

He observed in S.P. Gupta v. Union of India11:

The court has to innovate new methods and devise new strategies for the purpose of providing

access to justice to large masses of people who are denied their basic rights and to whom

freedom and liberty have no meaning.

Justice Bhagwati has added new dimention of dynamism to the justice dispensation mechanism

through his judgements. It is evident that he wanted law to be an instrument of social

engineering. his ideology was one which intented to make justice easy and accessible, free fromthe procedural complexities which constitute a grave cause of distress for the ignorant illiterate

rural class. Thus we see that justice Bhagwati expounded the function of Public Interest

Litigation inPeoples Union for Democratic Rights v. Union of India12 :

Public interest litigation which is a strategic arm of the legal aid movement and which is

intended to bring justice within the reach of the poor masses, who constitute the low visibility

area of humanity, is a totally different kind of litigation from the ordinary traditional litigation

which is intended to promote and vindicate public interest which demands that violations of

constitutional or legal rights of a large number of people who are poor, ignorant or in a socially

or economically disadvantaged position should not go un-noticed and unredressed. That would

be destructive of the rule of law which forms one of the essential elements of public interest in

any democratic form of government.

The fact that Justice Bhagwati considered human rights the essence of human existence and he

was sensitive to the plight of the deprived section of society is manifested in his observation in

Bandhua Mukti Morcha v. Union of India13:

10http://www.indiarightsonline.com/Sabrang/relipolcom5.nsf/5e7647d942f529c9e5256c3100376e2e/01bbd3ac70ea085965256ccc0046e6d5/$FILE/bac24729.pdf11 A.I.R. 1982 SC. 149 at 18912 A.I.R. 1982 S.C. 147313 A.I.R. 1984, SC. 802.
http://www.indiarightsonline.com/Sabrang/relipolcom5.nsf/5e7647d942f529c9e5256c3100376e2e/01bbd3ac70ea085965256ccc0046e6d5/$FILE/bac24729.pdfhttp://www.indiarightsonline.com/Sabrang/relipolcom5.nsf/5e7647d942f529c9e5256c3100376e2e/01bbd3ac70ea085965256ccc0046e6d5/$FILE/bac24729.pdfhttp://www.indiarightsonline.com/Sabrang/relipolcom5.nsf/5e7647d942f529c9e5256c3100376e2e/01bbd3ac70ea085965256ccc0046e6d5/$FILE/bac24729.pdfhttp://www.indiarightsonline.com/Sabrang/relipolcom5.nsf/5e7647d942f529c9e5256c3100376e2e/01bbd3ac70ea085965256ccc0046e6d5/$FILE/bac24729.pdf


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Public interest litigation is not in the nature of adversary litigation but it is a challenge and an

opportunity to the government and its officers to make basic human rights meaningful to the

deprived and vulnerable sections of the community.

Justice Bhagwati has revisited Dean Roscoe Pounds Sociological jurisprudence. Sociologicaljurisprudence concentrates on Law and considers society in relation to it14. This jurisprudential

school of thought considers law as a powerful means of social control and a tool for ushering

social change. Justice Bhagwatis observations bear testimony to his conviction in law as a

socio-legal mechanism and he tried to make it a powerful instrument of achieving welfare of

people. InBihar Legal Support Society v. Chief Justice of India and anothers15, on behalf of the

five Judges Bench of Supreme Court, Chief Justice Bhagwati Observed:

This court has always regarded the poor and the disadvantaged as entitled to preferentialconsideration than the rich and the affluent, the businessmen and the industrialists. The reason is

that the weaker section of Indian humanity have been deprived of justice for long long years, they

have had no access to justice on account of their poverty, ignorance and illiteracy. They are not

aware of the rights and benefits conferred upon them by the constitution and the law. On account

of their social and economically disadvantaged position they lack the capacity to assert their

rights and they dont have the material resources with which to enforce their social and

economic entitlements and combat exploitation and injustice. The majority of the people of our

country are subjected to this denial of access to justice and, overtaken by despair andhelplessness, they continue to remain victims of and exploitative society where economic power is

concentrated in the hands of a few and it is used for perpetuation of domination over large

masses of human beings. This court has always, therefore, regarded it as its duty to come to the

rescue of these deprived and vulnerable sections of Indian humanity in order to help them realize

their economic and social entitlements and to bring to an end their oppression and exploitation.

The strategy of Public interest Litigation has been evolved by this court with a view to bring

justice within the reach of the poor and the disadvantages sections of the community.

14 Pound R.: Outlines of Jurisprudence p.246.15 (1986), 4 S.C.C. 767.


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Thus, we see that slowly and yet surely a whole new poverty oriented jurisprudence 16 has taken

shape through various decisions, some of which have been discussed above. Justice Bhagwati

through his judgements and observations has time and again reassured the comman man that he

is also a valuable and important consumer of justice. He was instrumental in introducing Public

Interest Litigation with a view to ensure justice is accessible to those who could not enter into the

portals of our law courts for reasons of poverty, illiteracy or other social disability.

Thus we witness Justice Bhagwati as an activist and reformist in his own rights, ever

willing to cast off rules of procedure in the wider interest of justice, but was not supported by

many of his brethren on the bench but for Justice Krishna Iyer who shared his enthusiasm and

zeal for the cause. Justice Bhagwatis commitment to the cause of social justice guaranteeing

requisite human dignity to each and every individual were responsible for opening doors ofjustice to the poor, needy and the indigent and for developing a socially accountable third world

jurisprudence.17

16Proceedings of the First All India Indo-GDR Law Seminar on "The Role of Judiciary in Transformation of Society--India-GDR Experiments" held in Delhi January 21-23, 198317Public Interest Litigation As An Instrument of Social Justice, Justice Gulab Gupta, Central Law Quarterly, Vol. 5:1.


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CHAPTER III

EVOLUTION OF JAIL JURISPRUDENCE

4.1 DEVELOPMENT OF JAIL JURISPRUDENCE:

INTRODUCTION

Justice Bhagwati inHussainara Khatoon v. Holne Secretary, State of Biharpoingnantly

expressed the plight of prisoners by quoting the following poem of President London B. Johnson

of the United States:

he does not stay in jail because he is guilty;

He does not stay in jail because any sentence has been passed;

He does not stay in jail because he is any more likely to flee before trial;

He stay in jail for one reason only-because he is poor.

To quote Justice Bhagwati again it is high time the public conscience is awakened and the

Government as well as the judiciary begins to realize that in the dark cells of our prisons there

are large number of men and women who are waiting patiently, impatiently perhaps, but in vain,

for Justice.

InHussainara Khatoon v. State of Bihar18,Justice Bhagwati expresses shock, anguish and

dismay on discovering that the jails in Bihar contained thousands of people who were under trial

for inordinately long periods of time, for periods of three to ten years, some of them being held

for trivial offences for which the lawful sentence of imprisonment could be a few months only.

Justice Bhagwati stand in this case is essentially from humanitarian perspective:

we find from the list of under-trial prisoners..a shocking state of affairs and betrays complete

lack of concern for human values. It expresses the callousness of our legal and judicial system which can

18 AIR 1979 SC 1379


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remain unmoved by such enormous misery and suffering resulting from totally unjustified derivation of

personal liberty.

4.2RECOGNITION OF PRISONERS RIGHT TO FREE LEGAL AID

Justice Bhagwati has addressed various issues apart from the issue of grave injustice done

with the under trial prisoners. He also brought to light the injustice that is done in absence of

proper legal aid. As many of the under-trial languish in jail because even though they are

charged with offences that are bailable, they are unable to furnish bail owing to their poverty, or

are unaware of their rights. Justice Bhagwatis emphasized the urgent need for undertaking legal

aid programme, this was iterated in his observation:

the unfortunate situation cries aloud for introduction of an adequate programme, but so

far, these cries do not seem to have revoked any response. We do not think it is possible to reach

the benefits of the legal process to the poor, to protect them against injustice and to secure to

them their constitutional and statutory rights unless there is a nationwide legal services

programme to provide legal services to them.19

Justice Bhagwati also elaborately discussed the significance of Article 39A providing for

Free Legal Aid in following words:

This article also emphasizes that free legal service is an unalienable element of reasonable, fair

and just procedure for without it a person suffering from economic or other disabilities would be

deprived of the opportunity for securing justice. The right to free legal services is therefore , clearly an

essential ingredient of reasonable ,fair and just procedure for a person accused of an offence and it

must be held implicit in the guarantee of Article 21.this is the constitutional right of every accused person

who is unable to engage a lawyer and secure legal services on account of reasons such as poverty,

indigence or incommunicado situation and the state is under a mandate to provide a lawyer to the

accused person if the circumstances of the case and the needs of justice so required.20

19 Hussainara Khatoon v. State of Bihar AIR 1979 S.C. 1373.20Ibid 1374


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His concern for urgent need is evident in his following observation where he mandates it

as the call of the day:

this constitutional obligation cannot wait any longer for its fulfillment, since more than 30 years

have passed from the date of the enactment of the constitution21

4.3 ARTICLE 21 ASSIMILATION IN JAIL JURISPRUDENCE

Justice Bhagwati has conceived a whole new sphere of jail Jurisprudence where the rights

of prisoners are given due recognition. The recognition of under-trial prisoners right to personal

liberty has given way to recognition of human rights of the prisoners in the real spirit. Justice

Bhagwatis anguish at the lack ofLegal Aid programme is indicative of his concern for the

protection of the basic constitutional rights of the prisoners, of which they are deprived of due to

ignorance, poverty, lack of resources. Justice Bhagwati apart from attributing humanitarian

connotation also encapsulated Article 21 in the assessment. He observed:

it is now well settled , as a result of the decision of this court in Meneka Gandhi v. UOI22that

when article 21 provides that no person shall be deprived of hi life or libertyexcept in accordance with

the procedure established by law, it is not enough that there should be some semblance of procedure

provided by law, but the procedure under which a person may be deprived of his life or liberty should be

reasonable, fair and just. Now a procedure which does not make available legal services to an accused

person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without

legal assistance, cannot possibly be regarded as reasonable, fair and just.

Though, Supreme Court has time and again laid down precedents liberalizing the bail law or

sensitivity of the elitist judiciary to the injustice to the masses. However with a pro poor judge on

bench Hussainara case, for the first time epitomized an active, almost explosive assertion of

judicial power in the aid of the deprived sections of the society. This case set a pathbreaking

trend in bail jurisprudence in India23. To quote Justice Bhagwati,

21 Hussainara Khatoon v. State of Bihar AIR 1979 S.C. 1381.22 AIR 1978 S.C. 59723Human Rights and Bail, R. Sharma , 2002 APH Publishing, p. 155


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the bail system, as we see it administered in criminal courts today, is extremely unsatisfactory

and needs drastic change. In the first place, it is virtually impossible to translate risk of monetary

loss as the only deterrent for the accused from fleeing from justice. There are several

considerations which deter an accused from fleeing from justice and risk of financial loss is only

one of them and that too not a major one. The experience of enlightened Bail Projects in the

United states such as theManhattan Bail Project and D.C. Bail Project shows that even without

monetary bail it has been possible to secure the presence of the accused at the trial in quite a

large number of cases24

The primary concern of Justice Bhagwati was delivery of Justice, the primary concern of

judiciary, according to him was to ensure that justice is delivered; the grievance should be

adequately regressed and the role of Free Legal aid in furthering this cause as being its delivery

system. For justice is not what happens in the court room but goes out of it and reaches the

aggrieved. In this regard, he observed:

let it not be forgotten that law is not only to speak justice but also deliver justice, legal aid is

really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice to

the common man who as the poet sang

bowed by the weight of centuries he leans

Upon his hoe and gazes on the ground,

The emptiness of ages on his face,

And on his back the burden of the world.25

24 Ibid25 Hussainara Khatoon v. State of Bihar AIR 1979 S.C. 1381.


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CHAPTER IV

ROLE IN EVOLVING ENVIRONMENTAL

JURISPRUDENCE

3.1 INDIAN ENVIRONMENTAL JURISPRUDENCE: ROLE OF

JUSTICE BHAGWATI.

Since long, Supreme Court of India has been actively engaged, in many regards and

respects in the furtherance of environmental concerns and causes under the aegis of few pro-

environmental judges. Indeed some critics of Supreme Court describe the Court as the Lords of

Green Bench or Garbage Supervisor.26 International Legal experts have been unequivocal in

terming the Indian courts of law as Pioneer, both in terms of laying down new principles of law

and also in the application of innovative methods in the environmental justice delivery system.27

Thus we see that the court has expounded new principles or adopted international environmental

principles to widen the ambit of environmental law in India. Environmental principles, such as

polluter pays principle,28 precautionary principle29 and public trust doctrine30 have been adopted

by the Court in its concern to protect the environment from further degradation and improve the

26 S.S. Prakash and P.V.N. Sarma, Environment Protection vis--vis Judicial Activism, 2Supreme Court Journal 56 (1998).27G. L. Peiris, Public Interest Litigation in the Indian Subcontinent: Current Dimensions, 40(1) Internationaland Comparative Law Quarterly66 (1991). See also M.R .Anderson,Individual Rights to Environmental Protection in India, in A. E. Boyle and M.R. Andersoneds., HumanRights Approaches to Environmental Protection 1 (United Kingdom: OxfordUniversity Press, 199828The Polluter Pays Principle is a principle in international environmental law where thepolluting party pays for thedamage done to the natural environment.29Precautionary Principle aims to provide guidance for protecting public health and the

environment in the faceof uncertain risks, stating that the absence of full scientific certainty shall not be used as areason to postpone measures where there is a risk of serious or irreversible harm to publichealth or the environment.30The Public Trust Doctrine is the principle that certain resources are preserved for publicuse, and that thegovernment is required to maintain it for the publics reasonable use.


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same. It is important to note that these principles have been developed in various international

agreements and conferences to control and prevent further environmental degradation.

Justice Bhagwati has also played an indispensable role in laying down of some of these

innovative principles, or adopting the same from international covenants. The decision of

Supreme Court in M.C. Mehta v. Union of India31laid down the new principle of absolute

liability, it was a significant departure from the well established common law principle of Strict

liability. In laying down this rule, the then Chief Justice Bhagwati held:

We have to evolve new principles and lay down new norms which would adequately deal with the

new problems which arise in a highly industrialized economy. We cannot allow our judicial

thinking to be constricted by reference to the law as it prevails in England or for that matter in

any other foreign country. We no longer need the crutches of a foreign legal order. We are

certainly prepared to receive light from whatever sources it comes but we have to build our ownjurisprudence.

Justice Bhagwatis this observation is clearly indicative of the intention of the Indian judiciary to

deviate from the common law tradition of the earlier legal order and at the same time shows the

willingness to accommodate and accept what is found good in earlier legal order or in other legal

systems. This attitude of Justice Bhagwati manifests the Indian Legal Culture of syncretism with

its openness and readiness for legal osmosis.32

31 (1987) 1 SCC 395.32Environmental Jurisprudence in India, C.M. Abraham, 1999 Kluwer Law International, p.110


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CHAPTER V

CONCLUSION

Justice Bhagwatis name is synonymous with several benchmark developments in the

evolution of our judicial system. Justice Bhagwatis tenure has marked substantial change in the

attitude and perspective of the general public towards higher judiciary. Law, is like a cobweb;

the rich and the strong would be able to break it and the poor would be entangled in it, and the

understanding of the same and his orientation towards the sociological school of jurisprudence is

visible in Justice bhagwatis observations in various judgements

In cases like Peoples Union for Democratic Rights v. UOI, he expressed his concern for

the representation of the interest of the poor and vulnerable through his observation whereby he

referred PIL as a strategic arm of Legal Aid Movement which shall aid in bringing justice within

the reach of the poor masses. This resulted in a sea change with regard to image and perception

of Supreme Court from an institution which was seen earlier as one, that is elitist in its

orientation and composition to one actively acknowledging and addressing the problems and

issues concerning the poor and the marginalized section of society. Justice Bhagwati is an active

and bold exponent ofPoverty oriented jurisprudence. Being widely recognized as a pro poor

judge he left no opportunity to give the interests of poor adequate representation. His approach

towards them was humane, restorative and compensatory, in terms of the grave injustices that

they have been subject to. This was also acknowledged by Justice Bhagwati by making

observation in his judgments where illustrated how the marginalized section of society have been

oppressed and wronged.

While in cases likeHussainara Khatoon v. Holnr Secretary, Justice Bhagwati laid down a whole

new sphere of Jail Jurisprudence. Under the realm of Jail jurisprudence, Justice Bhagwati

advocated the rights and interests of prisoners. He adherently advocated the constitutional,


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REFERENCES

1. Aharon Baraks, The judge in a Democracy, 2006, pg. 77, Princeton Univ. Press

2. G. L. Peiris, Public Interest Litigation in the Indian Subcontinent: Current Dimensions,

40 (1) International and Comparative Law Quarterly 66 (1991).

3. M.R .Anderson, Individual Rights to Environmental Protection in India, (A. E. Boyle

and M.R. Anderson eds.),

4. Human Rights Approaches to Environmental Protection 1 (United Kingdom: Oxford

University Press, 1998

5. R. Sharma, Human Rights and Bail, 2002 APH Publishing, p. 155

6. E. Lauterpacht, International Law Reports

7. Judicial Independence: The Contemporary Debate (Shimon Shetreet & Jules Descheves

eds 1985)

8. Pound R.: Outlines of Jurisprudence

9. Proceedings of the First All India Indo-GDR Law Seminar on "The Role of Judiciary in

Transformation of Society--India-GDR Experiments" held in Delhi January 21-23, 198310. Justice Gulab Gupta, Public Interest Litigation As An Instrument of Social Justice,

Central Law Quarterly, Vol. 5:1.

11. S.S. Prakash and P.V.N. Sarma, Environment Protection vis--vis Judicial Activism, 2Supreme Court Journal 56 (1998).

12. The Supreme Court and its Chief, Economic and Political Weekly, Jan 3-10,1987.


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LIST OF CASES1. S.P. Gupta & others v. President of India & others AIR 1982, SC 152.

2. Beanregand v. Canada [1986] 2.S.C.R. 56, 70.

3. Peoples Union for Democratic Rights v. Union of India A.I.R. 1982 S.C. 1473

4. S.P. Gupta v. Union of India A.I.R. 1982 SC. 149 at 189

5. Bandhua Mukti Morcha v. Union of India A.I.R. 1984, SC. 802.

6. Bihar Legal Support Society v. Chief Justice of India and anothers (1986), 4 S.C.C. 767

7. Meneka Gandhi v. UOIAIR 1978 S.C. 597

8. M.C. Mehta v. Union of India (1987) 1 SCC 395.


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Documents

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