 day in and day out, I believe that even on the social media and especially in the newspapers, etc., including the debates, an issue which is commonly discussed about this constitution of India, the rights within the framework of the constitution of India, the fundamental rights and duties, they all arise out of the principles and acts and rules as laid down in the constitution of India. We all believe that the Ritz, we commonly read about in the newspapers or on the press, that the Ritz was filed seeking a writ of mandamus, sarshwari, prohibition, habeas corpus. Similarly, we talk about fundamental rights, rights of speech, etc. They all emanate primarily from the Ritz being filed under Article 2 to 6 or the revisionary jurisdiction of the 2 to 7. And thereafter, we also speak about the Paa and 32. And there's always a debate as to whether which have more vast Paa than the Article 32 or 226. And what are the superior unions of Paa? That, frankly, would not be the debate as such. But the compass of scope within the means of Articles 32, 226 and 227 of the constitution of India is a topic which we discuss not only as a student, students of law, a common man in the judicial setup as such. Keeping in view the growing discussions and debates, we thought why not take a topic which even a common man wishes to understand, especially the terms of view and scopes within that. Consequently, we requested Mr Mohan Kattri, a senior advocate in Supreme Court of India, who is a well-known name, his contribution towards the evolution of the constitutional law. More so in the dams, rivers, etc., is known to everyone. And he was kind enough to share his knowledge. We requested him to kindly share the knowledge. He accepted that and he asked that he's on our platform. Without taking much time, I would request, sir, to take things forward over to you. And thank you, sir. And to all the participants, we welcome you all. And again, what we say, kindly maintain social distancing and wear the mask, which is an important thing which is emanated with the flux of time, especially after this COVID-19. Over to you, sir. Thank you, Vikas. Thank you, Vikas. At the outset, thank you again for inviting me to speak on this occasion. Initially, I was hesitant to speak on a topic which looked simple because I said, am I going to speak in the law school to teach the students? Are we going to address the lawyers? If you're addressing the lawyers, naturally we presume that we are going to speak from an angle which might be a proposition which they agree or do not agree. Therefore, after much discussion, we decided to phrase the proposition like this, the changing compass of judicial review under Articles 32, 226 and 227 of the Constitution of India. We all been familiar with judicial control over the actions of the state. The term judicial review is a term of art. It signifies the control of the judiciary over the administrative actions of the executive and the legislative actions of the legislature. It ranges, in fact, from administrative action and goes up to the constituted power exercised by the legislature. As you're all aware, in India, the Supreme Court or the High Court can strike down even the constitutional amendment. If the court comes to a conclusion that it violates the basic structure, which is the implied limitation conceived by the court judicially under Article 368 of the Constitution. Therefore, there has been a lot of debate around the world. In fact, very intensely debated in the United States of America, where they don't only have judicial review over the administrative action like in England, also over the legislative actions as in India. So what is the foundation? What is the philosophical foundation of this judicial review? Why should the legislature, why should the administrative organ of the government be subjected to final say of the judiciary? Should not the legislature, should not the executive, left free to decide for itself? After all, they also act in public interest. Many have seen this as undemocratic that some judges sitting in the ivory tower who are not answerable to public as the ministers are answerable to the public through the legislature. They decide over important policy matters in the name of legality. So the questions are being often asked and very intensely debated around the world, particularly in the western world and in United States of America, that what is the juristic basis and what is the basis for this judicial review? How do you reconcile this power or judicial review with the people's power in the democracy? The juristic centric argument in support of judicial review emanated in England in order to uphold rule of law. The government, after the advent of social contract theory, was conceived as the government by rule of law, not rule by law. When rule of law became necessary, it became necessary for the question of power in the judiciary to control the administrative actions. In United States of America, though they inherited the same process, but when it came to the judicial review of legislative action in Madison case, it was logically deduced as a juristic argument to conclude that the courts have the power. But this is a legal deduction. It still doesn't answer the main question, why should courts be granted such a power? The argument which has been advanced in the couple of decades is judicial power is necessary as a counter-majoritarian instrument to control the government which acts on majority in the legislature. It sounds great because today in the written constitution, you not only find the powers of the government, you also find certain areas, certain spaces which are reserved for the individuals, namely the fundamental rights or basic rights, or which the government has no authority to interfere. They cannot act which amounts to interfering in these areas or trampling into these rights. So if these are the important things, the basic rights and fundamental rights, then they can't be a paper rights. They have to be enforceable rights. If they are enforceable rights, then the conformment of power in the hands of judiciary as an external body, as an independent body, man-wrapped professional judges who do not answer to any political wings or who have no stakes in the political outcome in the nation should be trusted. They should be vested with the powers. So that's how the judicial review has been justified in the constitutional setup, particularly the written constitution. No doubt the criticism continues to exist. You often hear judicial outreach. You often hear the executive wise being massed by the judiciary. You also hear the courts dictate the policies, courts make the law. These are all the arguments being made, despite it is a settled proposition now that judicial review is a part of constitutionalism. There cannot be a written constitution in the modern sense without the courts being vested with power to review both administrative and legislative actions. Even in England, where the parliament is not amenable to the great jurisdiction of the English courts, there has been very strong debate that they are indeed amenable. They go back to the old Bonam case when the court said, if the law made by the parliament is inconsistent with the reason and the common law, such a law, the judiciary will not enforce. Because the argument is, who said the parliament is supreme? It is the judiciary. If judiciary had say the parliament is supreme in England, the judiciary can say, yes, it is supreme, but subject to these riders. In fact, this is how the Supreme Court in the United States of America came to the conclusion that it has the judicial power to rule on the constitutionality of the law made by the legislature. The US constitution also doesn't expressly recognize the power in the judiciary to rule against the validity of the law passed by the legislature. But it was recognized step by step as a logical conclusion. In one of the articles published in the court of the law journal, very interesting deduction is made how the American Supreme Court finally came to the conclusion that it has such a power called judicial review power. The first thing is, it is the duty of the judiciary to apply the law. This is the first principle with the American Supreme Court stated who applies the law is the judiciary. Once the judicial branch is created under the constitution, the duty of the judiciary is to apply the law. There is an acceptance of a proposition that the power to apply the law best with the judiciary. The second premise is, when there are two contradictory laws, when there are two contradictory laws, the application of one of them excludes that of the letter. When two laws are contradictory, it is logical for the court to decide which prevails over which law. So one law will have priority and court will enforce only one law if there is a conflict. Then the third premise was, the constitution is the supreme law. The constitution is a supreme law and the defining criterion of legality for other norms. The written constitution in America, in other states of America, is a supreme law. So as in any country, now, where it is governed by the written constitution. So once we accept the constitution as the supreme law in a Palestinian language, that is Hans Kelsen, who called it a grand norm in the hierarchy of norms, the highest norm in the constitution. So the constitutional law or the constitution is the supreme law of the line that is the principle on which the Supreme Court proceeded. Then the fourth premise was, the supremacy of the constitution implies that. The supremacy of the constitution implies that when it is in conflict with the norm enacted by the legislature. When it is in conflict with the act passed by the legislature, the latter ceases to be valid law. The latter ceases to be valid law that is the act of the legislature. If it is in conflict with the constitution, it ceases to be invalid because constitution is supreme. Then the fifth premise, sorry, I'll go to the next. The legislature is limited by the constitution. Unlike in England, where so far the court has considered that the parliament is supreme and not only supreme, its powers are unlimited. No court can inquire. This is the legal principle which the British court has enunciated, which now they're planning to. There is a debate outside the judiciary. Why should it not be said that it is subject to certain conditions, but that is separate. In the United States of America, in Madison case, they came to the conclusion that the legislature is limited by the constitution. Because the legislature is created by the constitution. That's how the logically it was deduced. Then next is, if the law is not valid, then it lacks binding force. So if one of the law that the law made by the legislature, if it is in conflict with the law, if it is a conflict with the constitution, a provision of the constitution, then the law made by the legislature is not valid. And if it is not valid, it is a duty of the judiciary not to enforce such a law. So this is how in Madison case, by logical deduction, logical legal deduction, the US Supreme Court asserted the power to rule against the validity of laws made by the Congress as a legislature. Over a period of time, the legal logic has found its acceptance. After all, you all know that Justice Holmes said, law is not simply logic. It's an experience. What was ruled in the Madison case, over a period of last 150 years or more, it has come to be accepted by the people. As an instrument necessary for protecting the rights of individuals and enforcing the legality in the government or to experience government which sticks to rule of law. It is recognized as a counter majority area instrument to protect the rights of individuals and minorities. That is how the politically, in a political theory, where many political theorists find it difficult to digest judicial review as a power vested in the court to invalidate the laws made by the people in the Supreme Legislature. Have come to more or less accept and live with power of judicial review. When this is the position, when this is the accepted position. In 1950, when India framed the Constitution, the Constitution of India was framed by Constitutional Assembly, which got power under the Indian Independence Act, transferred by the British Parliament into the legislature that is a constitutional assembly to frame the Constitution of India and to govern itself as an independent nation. And this act we call popularly as grant of independence. In a legal term, it is Indian Independence Act 1947 passed by the British legislature. Besides, in India, there were hundreds of princely states, which roughly occupied about one third of the area, which is a part of India now, including the Mysore State, Hyderabad State, Trivandrum or Kashmir or Bupa. These princely states were earlier under the paramountity of the British Crown. The British Crown issued his paramount power under section 71 of the Indian Independence Act and let all the princes free to do what they like. And these princes, who had no legs to stand on their own, because as long as British were in power, their external sovereignty was guaranteed by the British. And they had no choice but to join the Indian of India or Pakistan if it fell on that side of the border. So that's how the integration of India was brought in. All the princely states signed instrument of accession initially on three subjects. Later they accepted the Constitution. So the Constitution of India was framed by the Constituent Assembly. Its power to frame the Constitution was derived from two sources. One was the sovereignty transferred by the British Parliament. Second, the power surrendered by the princes in India. But the Constitution opens with the word with the people because symbolically, the representatives of the people who enacted the Constitution were representing the people. And in that broader sense, as if the whole India assembled at Delhi and enacted the Constitution of India. That's why we started with the people of India. Playing apart this coming to the topic. The Constitution of India, which was modeled on the British unwritten Constitution and the written Constitution of the United States of America, decided to confer power on the Supreme Court and the High Courts to exercise power of judicial review in the form of issuance of acts to invalidate the illegal actions of the public authorities, which includes governments or any statutory bodies or the agencies of the government and the legislature, which includes state legislature and the parliament. So vast power, very important power is conferred on both Supreme Court and the High Courts. These courts, because of the conformance of such an important power, which is not conferred in other courts, are called Courts of Superior Jurisdiction or Court of Records, because they have been on recognition as a court of record. They have the power to punish for the contempt, that is, if somebody disobeys their order, their right, their direction, they have an inherent power to punish the person for contempt. They don't require contempt of court act. The contempt of court act is only supplemented to these Courts of Superior Jurisdiction. So these Courts of Superior Jurisdiction, which are the power to punish anyone for the contempt, to have its order implemented, have the power to assure its, if the public authority or the legislature has acted inconsistent with the legal, or fundamental rights. The only difference between the Supreme Court and the High Court in respect of judicial review is Supreme Court is limited to the enforcement of fundamental right. If you open Article 32, clause one, it states that Supreme Court is restricted to the power to enforce the fundamental rights. Then it says, for the purpose of enforcement of the fundamental rights guaranteed under clause one of Article 32, the court will have the power to assure its nature of mandamus, certiorari, etc. When it comes to High Court, it is not limited to the enforcement of fundamental right. It has a broader jurisdiction. It can enforce any legal right if that legal right is violated by a public authority, government, or agency of the state. If it is traced to the public authority, the court can exercise its right powers, its power of judicial review, as we call it in the modern sense, otherwise we all call it as a right jurisdiction or right powers. Exercise the power of judicial review and invalidate the action by declaration, then crash it, then issue a consequential order which could be in the nature of rate of mandamus, it could be in the nature of rate of certiorari, it could be in the nature of rate of prohibition. The difference between these three rates is historic, but still it is relevant. What do you mean by rate of mandamus? Rate of mandamus is basically a rate issued by the court after it comes to a conclusion that the government or public authority has wrongfully acted and the wrong has to be undone. And consequently, the authority should be directed to take a fresh decision or in rare cases decide as court directs. For instance, in a case relating to a grant of a permit or license, you take it into any act, I'm not specifying. Broadly, I say, grant of license permits. If somebody has been denied a license or a permit, he goes to a court challenging the denial as illegal, as violating of the procedure prescribed, or he was not heard, or it is outside the powers of the legislature, whatever it is. If the court finds that, not outside the power of the legislature, that is a different case, if the court finds that the act of the public authority is illegal because a particular procedure was not followed. If prejudice has been caused, then it will declare it as illegal, then direct the government or the authority to take a fresh decision in accordance with law. Sometimes the court feels that the authority has been repeatedly dragging its feet. The court has extraordinary power of directing, you now issue a license or a permit. So that is how the RIT of mind of muscles accepts. Then you have RIT of certiorari, RIT of prohibition. If a quasi-judicial body acts outside its jurisdiction, that decision is crushed like land tribunal, then a RIT of certiorari is issued. Directing the authority to take a fresh decision in accordance with law. Suppose an authority has acted against a person, though it has no powers at all, is completely outside its jurisdiction, then RIT of prohibition is issued. Directing the authority not to act, stop it. So this is how it is done. Now broadly, this RIT power, power of judicial review, was exercised in the first four decades, not three decades, we can say, from 1950 to 1980, strictly based on the principle of legality. The courts were stiff-necked, hard-nosed. First question they would ask is, who are you? What's your interest? What is your locus to challenge? They didn't bother whether government acted illegally or government acted outside of the law. First question is, who are you? What is your interest? Why you have come to the court? First to satisfy that. Then only we look into the legality of the action of the government. So locus standard was a very important threshold requirement to be satisfied before invoking the power of judicial review or RIT under 226 or 32. There are several other self-imposed restrictions, though article 32, 226, do not say or 227, do not say anything with regard to the or any restriction it imposes. The power granted to the courts are plenary powers. But since it is the discretionary remedy, the courts are imposed certain restrictions upon themselves and these restrictions are in the nature of requirement of a standing, the ripeness of the dispute. You can't just come whenever you like. There has to be ripeness. There has to be demanded denial. There should not be any latches. So all these various self-imposed restrictions are there. So court functioned in the first three decades, the RIT courts or courts of superior jurisdiction, which exercise judicial power as hard-nosed court, stiff net. They would not look into anything which did not strictly fit into the legality or doctrine of ultra-virus. If it fits in, the courts were very bold enough, no doubt, to strike down. When they found that the constitutional amendment in 1967 in Golakarnath case or later in 1973 were found to be unconstitutional in a sense. They violated the basic structure. The court invalidated. There was enough boldness, but the approach in those days was an approach of strict legality. We'll have to strictly conform to the legal logic. It proceeds from one example to another and if it legally logical, the action was invalidated. They did not go into the equity aspects. They did not enter into other aspects. That is how the courts functioned till 1980. The change came after 1979 when Supreme Court in Manikar Gandhi case went ahead to say that, in fact it overruled its earlier decision in Gopalan's case, that the law made under Article 21 to take away the personal liberty or life of a citizen is not just a law. It has to be a law which meets the test of reasonableness. This became very important because Article 21, if you read, what does it mean? It means nothing. It means nothing because it says that you are right to life and liberty and it cannot be denied except by procedure established by law. That means if a legislature makes a law, state legislature or a parliament, your liberty can be taken away. Your life can be taken away. That's all it means. It is only a guarantee against the executive. That's all. But if there is a law made by the parliament or legislature, it can be taken away. That is how the courts read it in Gopalan's case. But in Manikar Gandhi's case, courts said this amounts to a meaningless guarantee. At the most, it's a guarantee against the executive which cannot act without a legislative support from the parliament in case of center or state legislature in case of states. The court went ahead and said, mere passing of a law is not sufficient. It has to be reasonable. So test of reasonableness was introduced as implied in Article 21 by reading it along with Article 19 and 14. By harmonious construction, the court was able to come to the conclusion that the law which the constitution makers meant in Article 21 is not a mere mechanical law, but a law which conforms to the sense of reason that is reasonable less. So this completely changed the scope of protection granted to the citizens and Article 21. Any law which unreasonably interferes into the life and liberty became subject of challenge. The next step came, what is the meaning of life? The meaning of life is not just a bare life. The court gave a very meaningful life, meaningful interpretation to the term life and it included dignity, right to live, right to sustenance, variety of things which goes to make a life a meaningful life. So by this kind of interpretation, the court was able to conceive the host of socio-economic rights which India had agreed to enforce in India by signing the International Convention in 1965. It is called International Covenant on Economic, Social and Cultural Rights. The socio-economic rights, right to health, right to food, right to education, all these rights are not expressly conceived in the constitution. But once Manikavanthi opened the door and once the meaning of life was expanded to mean a meaningful life, not a bare life, the court was able to by interpretation hold that right to health is a fundamental right, right to education is a fundamental right, right to food is a fundamental right, variety of things. Even the prisoners who were called condemned persons were recognized to have right to live with the dignity and for that purpose, various things, various measures which the government used to implement against the prisoners were knocked out by the court. This is how the court moved into the activist phase in the post 1980. The activist phase of the Supreme Court and the high courts in the post 1980 has different categories. One is enforcement of the rights of the prisoners where right to dignity was recognized. Secondly, enforcement of property in public life, transparency, the court recognized that elections to be conducted should be fair. And for that purpose, slew of directions are issued in various cases to bring property in the electoral process. The court recognized that the administration which conducts administration may have the power but the administration cannot act secretly. There is something called transparency. People have a right to information. The administration is bound to part of the information whenever people need it for their purpose. So the right to transparency became important. Then the environmental questions came. Earlier the courts were recognizing only the personal rights and I had said court used to ask the first question, who are you? What is your local standard to file this case? But once the environmental matters and these matters became actionable in the court because of the expanse meaning of article 21, the court stopped asking who are you? The local standard question was liberalized. All that you have to show that you have some connection to the issue which you are trying to agitate. The courts in fact started acting so more to also. You all know that public industrialization can be filed today. That is because the rule of standing which was strictly enforced before 1980 was relaxed. Today, since 1980 I would say last four decades, a person can file a repeat petition in the High Court or in the Supreme Court. Though he is not going to be a beneficiary but he will say I am trying to enforce the rights of laborers who are in large numbers spread over throughout Karnataka or throughout India. Who are not in a position to come to the court and seek justice, therefore on their behalf and as they represent to I am here. The court accepts such a plea. The court also accepts a plea that though I have no right over the environment, I do not own water. I do not own air nor I have any rights in the forest but still environment. These are the parts of environment which is necessary for sustaining my life. Therefore, I have an interest. The court accepted this interpretation and granted a standing to the individual or group of individuals to come and enforce. They liked the environment by challenging some wrongful action of the government. That is how we saw the judgments by the Supreme Court directing the government in series of cases in 90s. For example, the Delhi bus cases, the entire fleet of Delhi Transport Corporation, about 3,000 buses had to be replaced. They all run on gasoline causing a lot of pollution in the city. They had to be replaced by buses run on the gas, the ordinary gas, which will not cause pollution. It was a great thing. The court took upon itself the task of enforcing the rights and in this enforcement, as I already said, they didn't ask the question, who are you? Nor the court bothered to ask strictly whether it fits into the rate of mandamus, rate of sorcery, rate of prohibition. The court broadly said we have the power to give directions once we find that the right of a citizen is violated. So that's how the broad split court started acting to enforce the rights of the public, which were earlier not subject of any enforcement. Because nobody had a direct interest in these things to justify a locus before the court. Then it comes to social economic rights. As I already said, the court started enforcing the social economic rights by expanding the reading of right to life. But here one important thing you must all know, that is, court made one important ruling. Right to life in Article 21 is not only a negative right, but a positive right. What is this negative and positive? A negative right means, for example, right to food. Right to freedom to eat a food means nothing. That means you eat your food if you have the food. If you don't have the food, you don't eat. So right to freedom to eat a food means nothing. All that it means is that if you are eating your food, government cannot come and interfere. So these are not sufficient. This is a negative right. Court said there has to be a positive right. Because International Convention had made it very clear in section in Article 21 that the social economic rights are not negative rights or freedom. But there are claims against the state. If you are familiar with concept of rights, whenever you see rights in the, you read about the rights in your statues, there are four kinds of rights. Right to freedom, right to power, right to immunity and the most important right, right to claim. The moment you have a right to claim something, somebody has a duty to satisfy that claim. So when right to food, right to health, right to water is read as a positive right on Article 21. It is read as a claim. Claim against whom? Against the public authority. That is the state. So the state came under obligation to provide food to a person, shelter, health, all these kind of things. It became an obligation. But a question arose. What do you mean? Is it a duty of the court? Sorry, is the duty of the government to feed every person in the street? Is it a duty of the government to provide medicine to everyone in the country? Here, some restrictions are come. The courts, while enforcing socioeconomic rights around the world, particularly the South African Constitution, which was the first court, the first constitution which expressly recognized socioeconomic rights, itself says in Section 27 that the right or a claim has to be realized progressively. At once, you cannot direct the government that please extend the right to health to every citizen by opening a hospital in every village in the country. It can't be. But certainly there has to be a scheme. Government is accountable to come and say that we have a scheme. Under the scheme, it takes about five years or 10 years to progressively realize the right of the citizens. Same thing with regard to the drinking water. Same thing with regard to the shelter. That is how we see a lot of welfare majors being implemented in the country. And all these welfare majors, including right to education under Article 21a, are intended for progressive realization because a duty is cast upon the state. A duty is cast upon the state from where it is from Article 21 because the courts read Article 21 as a right, which is a positive right, which cast upon the government an obligation to provide. It's not only a negative right where the government will just allow you to exercise your freedom, allow you to work, allow you to eat, but it is a right which can be claimed against the government. The only one right which we are not able to really claim as a claim is right to work. In 1990, if I remember, the opposition parties made a commitment to the public in their election that if we come to the power, we will make right to work a fundamental right. They came to power. IPC became the prime minister. Then this question came up in parliament very aggressively. When are you going to make this? Then the government started consulting the experts, legal experts. Then it realized that if you make right to work a positive right, then the government will be under obligation to provide employment to everyone. It's not possible. So that's how right to work as a positive right, like it has been done on Article 21A, was deferred. But subsequently in 2008 or 2009 or before that, Manrega came, though it's not a constitutional amendment, but an act of a life stature, but it is intended to provide employment to all those who have no employment. It's not an employment of your choice, but something an employment so that a person can earn and e-coat his livelihood. So this is how socioeconomic rights are consumed under the constitution by giving an expansion meaning to Article 21. But the way to realize socioeconomic rights depends upon the purse of the government. The purse of the government depends upon the legislature imposing the taxes and collecting the revenues, etc. Therefore, the realization of a right cannot be mandated like the courts mandate any other things. If it finds that somebody has violated the law, public authority, use your mandamus, such kind of a inflexible mandamus cannot be issued. But the courts have taken a meaningful approach in trying to have these rights realized by framing a scheme, by framing certain formulas. I've been able to get it implemented, but not fully to some extent, no doubt. So this is how it is done. So the last category of activism is the courts make some time the laws. In Vikasa case, on the question of sexual harassment, the court found the present legal structure is very inadequate or there is no legal structure at all. A lot of sexual harassment takes place in the workplaces. Therefore, this needs to be regulated. And after coming to the conclusion that the woman has a right against sexual harassment and every citizen has a duty not to indulge in sexual harassment. In order to realize these rights, meaningfully, the court said, until the legislature acts and makes a law, we issue a directions. We frame norms and these norms have to be ideal too. And if they are not ideal too, we'll exercise our power of contempt and enforce them. So this is one area. In fact, it was started quite early, not only in Ushaka case. I think in 1984 sometime when Justice Bhagwati framed the norms for regulating the adoption of children by the foreigners in Pandey case. That's how the court started. Then in Unikrishnan case, the court by its judicial order framed a scheme for regulating the menace of the capitation fees and so forth. There are so many things. But these are the norms framed by the court in an area where the court finds there is no law. But the citizens have a fundamental right or any other, not citizens only, any person has a fundamental right under article 21 or 14. And if such fundamental right is there, the court considers that it is a responsibility. To frame, give a legal framework for meaningful exercise of that right. Otherwise, the right guaranteed by the constitution becomes a paper right, which is of no use. This is how the various ways of activist role of the court is being seen in the last four decades. As I said, for three decades, courts strictly enforced the rights, strictly acted under the doctrine of legality. It strictly invalidated the acts of the public authorities if they meet the test of doctrine of ultra virus. In the second phase, post Manaka Gandhi, the right got expanded, the expansive interpretation was given to article 21 that right to life. The law made by the legislature has to be reasonable. But the most important is the right under article 21, the right to life is not only a negative right. It is not only a freedom, but it is a posterior right, so that the state has an obligation to make that right realize. So, citizens got a claim over the state to demand right to health, right to shelter, right to food, various things. But there is another principle that all these rights realization depends upon the purse of the state. Therefore, at once court cannot direct their realization. They have to be progressively realized. Minimum court principle is applied even in South Africa. So that kind of a principle is there. So today, you see the courts playing very activist role in enforcing the fundamental rights, in enforcing the welfare measures for the poor. We have seen there are a lot of outcry recently when the lockdown was ordered. People expected the court to intervene. Initially court was hesitant because the court thought that it is judicially not manageable to do anything in this kind of a complete chaotic situation. But the court was strong. Later it realized that it intervened. Then it did issue certain meaningful directions to provide additional trades, to provide food and other thing to the migrants who wanted to go back to their home and who thought the lockdown would be a long process. And their stay in Delhi or Bombay or Calcutta wherever they're staying or in Bangalore is not useful until their life comes back to normal, which may take days, months or a year. It looks like it may take more time. Now, again, the court is faced with one more difficult issue. The crisis arising from the second wave of coronavirus. There has been some kind of a impression in the country that the government did not prepare itself. I'm not blaming anyone. It happens in the government. Whether somebody is blame or the or somebody has done that is separate matter with the parliament may have to look at sometime. That is a political process. But let us assume that we're not concerned with who has done what. But the fact is that the vaccines are not available. Beds are not available. Oxygen is not available. People are gasping for breath. And if one is not getting an oxygen, a serious matter, therefore, what had to intervene, the high court started intervening, passing directions. You saw how Delhi High Court literally tried for two weeks, asking the government to increase the supplies of oxygen. Karnataka High Court has also issued a direction, very important direction. So these are the things going on where in the most difficult area where there are no really judicially manageable standards, the court is called upon to intervene to protect the rights of the people. And this interference, of course, is being seen by the government as a interference into their executive functions. But that is the issue the court will have to decide. But broadly, one thing I would like to tell public interest litigation is a safety wall. No government should oppose public interest litigation. Because the anger of the people is taken out in the public interest litigation. In fact, I always had that because of the increased public interest litigation. The political moment in the country is being sacrificed or killed. Because the courts are acting as a safety wall by addressing the needs of the people. And as a result, the anger gets neutralized. And as a result, there is the political moment which should have been built against the government. I'm not saying present government. It could be in the previous government also. This has been going on for the last 30 years. It's not built. This is one theory. But when it comes to a question of life, when there is immediate danger to the life, we cannot look into these political theories and all. The court ought to interfere. The court must come to the rescue. The court must do something. It cannot stand on the niceties. It cannot buy the argument that it relies within the domain of the legislature. That's all doesn't work. Courts, executive, both have to work together. It's not an adversarial litigation when it comes to the enforcement of the rights relating to the life in these trying circumstances. It is the duty of the government to cooperate in the court and make the court as a forum for adjudicating the cross claims of all the stakeholders and devise an equitable solution to the satisfaction of all and to the satisfaction of the judicial wisdom by incorporating the principles of equity. So this is how the court is expected to handle and I'm sure they will handle it in the future. So friends, on the question of changing compass of judicial review and article 226, 227 and 32. I just forward to tell you 227. 227 is nothing but what is there in 226 itself. Instead of filing a rate of sorcery, you can file a rate, you can file an application 227 questioning the legality of the decision of the type. But it can also be filed a rate of sorcery under 226. That's the only difference. That's why most of the petitions are called 226 and 227 read together. That's how they are filed in the high courts, as I know, as I've seen. So this is probably the thing. The changing compass of the judiciary is the changing compass of the judicial review is the judicial review itself is not a static instrument. It has to change according to the social pressures. Initially, the courts considered adhering to the strict legality is the best guarantee against the government, but subsequently they found that it's not sufficient. There are problems with the government, the governance, the people demands are increasing. People are asking for more rights. Consciousness has come into the public. And if the rights of the people go unaddressed, there will be a social revolt. Therefore, it became necessary for the court to expand its role, shed its inhibitions, give up its self-imposed limitations like ripeness, demand, and this local standard latches. All these things were given up and the court became more receptive to the demands of the people and assume the activist role. In assuming the activist role, it has, of course, tensed upon the powers of the legislature. It is making laws, but court is careful. The charge is not correct that court is making the law. It is making the law with the express rider that their directions or their legal regime conceived like in Vishaka or in any case or any other case is subject to the law which ultimately the competent legislature makes. So until the legislature acts, until there is a vacuum, the court fills up the gap by making the regulations provided they are connected to the enforcement of fundamental rights, not otherwise. So this is how the court has expanded its role. The compass of judicial review had changed from one of a stick neck court to the one, a progressive court after 1918. So we have moved a long enough, some stiff neck to the liberal court. But as the demands of people increase, as the rights of people increase, as the consciousness changes, there is nothing like a cap. The court will have to redefine itself and adjust itself to enforce the new wishes, aspirations of the people. Thank you very much. I hope you all enjoyed. And if you have any questions, certainly would like to answer the questions. Thank you, sir. And rightly so to take the entire journey, even if it takes from 1950 onwards, when we say that new constitution came into being, to bring that entire this thing in a capsule of running around in 90 minutes, this shows that we were approximately, so your camera is shifted. Approximately, we were giving approximately one and a half minute to each year after the constitution of India. And to bring that entire this thing, it shows the volume of knowledge. The way you develop from AK Gopalan, then Manaka Gandhi, Vishakha's dead man, and P.K. Onikrishnan, everything to be summed up from 226 to 27 and this thing. But yes, you are rightly said, and remember that when we joined the profession in the early 90s, one of the lot of debates used to be as to whether it is an article 12 or not. There used to be a lot of litigation whether it would fall within the contours of article 12 or not. Now, I've seen that there's hardly any debate on this. Very rarely a case comes where it says it's not a state within this. Of late, only one I found against this IPBA which says it is not a state, it's a society therefore it's not performing the public duty as such. But yes, and then you took us back to all what are the rights reserved as duties. And it was actually one of the mesmerizing sessions and we have actually gained with that. And one of the platforms we have received one question. The rate of mandamus is allowed and after that for same subject matter regarding remaining people again is filed with the same period but means government change that rule. What is the remedy for the petitioners? No, it says has filed the same but meantime government has changed that rule. What is the remedy for the petitioners and what the court can give directions? No, I didn't get the question. What is the point? I will sum up in my own way. He says a red petition is allowed for particular employees. Now, meanwhile, when the other persons have filed the red petition, the government changes that particular rule. I get your point. Once the petition is allowed directing government to grant certain pay scale. I just give an example. That they find that court says on interpretation you are entitled to pay scale of 32,000 rupees. Issues of mandamus to grant. The court, the government by its rulemaking power on article 309 changes the law and says we clarify that this person, this category of persons are not entitled to this case. So interpretation by the court is overruled by the rulemaking power of the government. There is delegated legislation or by the legislature by passing the law. Then what happens to that? This is a very interesting because a lot of cases of this nature are come. There are also questions like somebody's building, high rise building is demolished on a ground that you are entitled to construct only 12 floors, but you're constructed 14 floors. So two floors are to be chopped off. After the court issued the direction, the government changes the law with retrospective effect and says you can go up to 14 or 15 floors. Then what happens to the mandamus issued already? Or chopping off two floors. So these are the questions which have important bearing on the public law, on the judicial power. If you ask me, my view is this, that if subsequently law changes, and if the law is valid, the validity of law has to be tested on fundamental rights violation, where the legislature has the competence to make the law. And if no fundamental right is violated, then the subsequent law is valid. The mandamus issued by the court gets neutralized. It is not enforceable. It has happened in the tax matters. It was very regular in fact earlier. The court would interpret and say that particular item is not taxable. Then the legislature would pass the law clarifying that it is taxable with retrospective effect. That is called validating legislation. So what was termed as illegal by the court was validated by the legislature. The court updates such laws with a rider after checking that the validating legislation should be within the competence of the legislature. And it should not violate any fundamental right. So if your claim is founded on a fundamental right, then legislature cannot change. And if it changes, the court will again rule in your favor. But if it is not a fundamental right, if it is just a legal right, then the legislature is competent to change that right. And if it changes, the basis of the mandamus disappears, then gets neutralized. Two things I would like to add probably he says. Now another situation would arises that those persons win an act with the Supreme Court. Then according to me, the law would be that intercede those two parties, the decision would be final. That is a separate question. If intercede judgment is rendered by the court, okay, we are talking about the jurisdiction, but this jurisdiction also sometimes intercede judgment comes. If the intercede judgment is their interparty judgment, right, then that interparty judgment is binding, okay. It cannot be overruled by the legislature. If the legislature interferes with the private rights, it is illegal. But still this is a gray area. I'm not sure what happened because in the famous case in America, that is the case relating to the bridge case. They made a distinction. If there is a judgment crystallizing the private rights, the legislature subsequently cannot take away those private rights. If there is a judgment on public rights, then they can take away. The Supreme Court of India in MM Patak case that was relating to in the Patak case and later in Nacani case also said once a right has been crystallized into a judgment, it cannot be taken away subsequently by the legislature. But this area is still a gray area because the courts have indeed taken a view. In fact, one of the case which I appeared, Mullah Parihar Dam case, we couldn't succeed on the same point. Earlier the legislature had fixed the reservoir level as 142 plus it can go up to the 145 they said Tamil Nadu. Kerala passed the law saying that it cannot go beyond 136. Then I was appearing for Kerala, we tried to defend it saying that the independent act of the legislature, it has passed the law. You cannot say that it violates the judicial verdict. But the court said it does impinge upon the judicial power. It cannot be done. This area is a little gray area. There are a lot of judgments. In fact, Nariman judgment is there one. Bill of Attender he refers to. This area is a little. I'm sorry. Yes. No, no. In fact, I was just checking out of Facebook and suddenly the voice popped up. I was thinking as to whether any question has come or not. Okay, okay. Say, broadly, there is also an argument that all that the court enforces by issuing direction is the legal right. Who creates legal rights? Let's change the legal right. So if they change the legal right, the basis of judgment goes. Therefore, the judgment is not impossible. This is a simple argument being made. The distinction made by the U.S. Supreme Court was public and private rights. Without that distinction, Supreme Court in India, in a particular case, they said that once the right has been crystallized into judgment, it cannot be taken away. Then subsequently said, well, it cannot be taken away in respect of those people, but general law, if it is, it can. It's a really a gray area, which needs to be one day addressed by the court in a very comprehensive manner. In service matter, it is very common or in tax matter. As you win the case, the government will change the law. It is happening. In service matter, the maximum things are let's assume the government has appointed a lot of people. Then they do come out with an audience, let's assume those elections have been caused. Correct. They do try to protect the judgment of the state of Punjab versus Bhupinder Singh. Correct. Who does case wherein they said that how it has to be protected. And then there was a judgment where he's saying of similar situation. At least in our high court, there's a division. Supreme Court also says that similarly situated person should be granted benefit of its own rather than forcing. No, that is a difference. He's trying to say nullifying. He's trying to say nullifying, otherwise I'm saying. Otherwise, similarly situated people will get nullification is a serious issue. Because you have been granted something and subsequently legislature passes the law to the contrary and say the law is not this as court said it is like this. Then again, another debate which arises is whether it can be a prospective or a retrospective, whether it could negate that judgment. Like you rightly said that. When the legislature passes the law subsequently, it is always passes with a clause for being a retrospective. Right. So from the date, whatever date they set up, they'll pass. So if it becomes retrospective, that means this judgment with the court proceeded on the assumption that law is X is not correct. The law is not X anymore. This is how the difficulty comes. Now it does happen. We do have one case, famous case, the Supreme Court ruled that government is not entitled to tax. The legislature amended the law, the parliament. And they said that it can. And thereafter, they demand what is so sent. And again, it has been challenging the pending in the court, but that is a serious matter. They won the case, but subsequently law was amended. Yeah. Because it was running into crowds. When direction is given under articles 227, 226 or 32, but the authority does not follow, then what is the remedy? Well, that is the contempt will follow. If authority does not follow the orders issued by the court, then you can haul up the concerned person who has not implemented the order or a minister who has come in the way of implementation of the order. And charge them for the contempt. The court can certainly take initiate action and put them in for whatever punishment they impose, then direct the government to grant or implement the judgment as they had directed. So this is by Dr. Serino asked under which article of the Constitution specifically confers the power of the judicial review on higher judiciary. 226, 227 and 32. Rate jurisdiction. Judicial review is a rate jurisdiction. So we don't have any questions as such. Thank you friends for connecting with us. And as we always say that kindly like share and subscribe the channel of Beyond Law CLC to have the previous sessions and if you follow us on the Instagram and follow Facebook, we'll come to know which sessions are coming forth. And as the question was posed to Mr. The effect what is the effect if the judgment is not followed. I can say fortuitously, once we are talking about the judicial compass which has traversed through the journey of around 77 years if we come from 1947 onwards and how the contempt pass will be coming there fortuitously tomorrow session would be on article one. I think it's 129, 215 read with Constitution of India by Mr. Asim Pandya senior advocate from Gujarat High Court. He's a former president of the Gujarat Bar Association coupled with the fact that he has already written the book on contempt support act. So do join us tomorrow at. Because yes sir. Because my name is Mohan Katarki. I stand correct. I think you're unable to pronounce it. Oh, this was why I was talking to Trichram as well as Mr. I said the same word I will just give an example. We wrote just as Harriet Prashant. Then the Prasuraja told me that the Prasad out in the north and the Prasad spelling in the south will never have the edge there. In Karnataka and Maharashtra, Tatarki is pronounced. In North India, they call it Katarki. So that's what I'm saying. Sometimes the entire word and pronunciation keeps changing. So we are thank you to serve for sharing his knowledge. And it was a treat for the mind to absorb all this session in a way the time flew and especially during these testing times. We can only enjoy it by staying home and having the knowledge though on virtual but actually it gets deep into the mind as well as the heart. Thank you, sir. Thank you. Thank you.