Citation(2009) 21 SAcLJ 1
Published date01 December 2009
Date01 December 2009
I. Introduction

1 It is indeed my privilege to be speaking here today, before such a distinguished audience. I would like to thank the Singapore Academy of Law for giving me this opportunity. Over the last three decades or so, the device of Public Interest Litigation (“PIL”) has come to be recognised as a characteristic feature of the higher Judiciary in India. Even though Indian courts cannot take credit for initiating the concept of “public law litigation”, they have in due course emerged as the site where this device has been repeatedly used to protect the interests of disadvantaged groups as well as address matters of collective concern. The phrase “public law litigation” was first prominently used by American academic Abram Chayes to describe the practice of lawyers or public spirited individuals who seek to precipitate social change through court-ordered decrees that reform legal rules, enforce existing laws and articulate public norms.1 However, the evolution of PIL in India, or Social Action Litigation — as Prof Upendra Baxi chooses to describe it, has accommodated several other distinctive features.

2 In this session, I will first summarise the core features of the PIL process and demonstrate how it marks a departure from the common-law understanding of the judicial process. After that I will present an overview of the circumstances that led to the introduction of this device which is clearly correlated to the “activist” turn of the higher Judiciary in India. The next component will be devoted to a survey of some prominent decisions given in PIL cases and to conclude I will reflect on some of the strategies adopted to streamline the institution of cases under this category.

3 Beginning with the first few instances in the late-1970s, the category of PIL has come to be associated with its own “people-friendly” procedure. The foremost change came in the form of the dilution of the requirement of “locus standi” for initiating proceedings. Since the intent was to ensure redressal to those who were otherwise too poor to move

the courts or were unaware of their legal entitlements, the court allowed actions to be brought on their behalf by social activists and lawyers.2 In numerous instances, the court took suo moto cognisance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as “epistolary jurisdiction”.

4 In PIL, the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the Government’s condonation of abusive practices, in most public interest-related litigation, the judges take on a far more active role in terms of posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. To overcome this problem, our courts have developed the practice of appointing “fact-finding commissions” on a case-by-case basis, which are deputed to inquire into the subject-matter of the case and report back to the court. These commissions usually consist of experts in the concerned fields or practising lawyers. In matters involving complex legal considerations, the courts also seek the services of senior counsel by appointing them as amicus curiae on a case-by-case basis.3

5 For purposes of constitutional competence, these actions are characterised as those coming under the writ jurisdiction of the Supreme Court of India under Art 32 of our Constitution and the various High Courts, under Art 226. The traditional extent of writ jurisdiction was of course a colonial inheritance from the British-era and the remedies that could be invoked were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. However, the Indian courts have pushed the boundaries of constitutional remedies by evolving the concept of a “continuing mandamus” which involves the

passing of regular directions and the monitoring of their implementation by executive agencies. In addition to designing remedies for ensuring that their orders are complied with, the courts have also resorted to private law remedies such as injunctions and “stay” orders in PIL matters. The Supreme Court of India has been able to shape appropriate remedies for a variety of situations on account of the wide discretionary powers for granting constitutional remedies that have been conferred on it as per the language of Art 32 of the Constitution. Furthermore, under Art 141 of the Constitution of India, the Supreme Court’s rulings are considered to be the “law of the land” and become binding precedents for all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in PIL matters have progressively shaped a unique jurisprudence that gives due weightage to the interests of the underprivileged and backward sections in society. A significant consequence of this is that creative remedies designed for particular fact-situations come to be widely reported and are referred to by courts all over the country. In this way, the rulings given in PIL cases create an active judicial dialogue within the whole legal system.

6 The advent of PIL is one of the key components of the approach of “judicial activism” that is attributed to the higher Judiciary in India. The courts’ interventions have played a pivotal role in advancing the protection of civil liberties, the rights of workers, gender justice, accountability of public institutions, environmental conservation and the guarantee of socio-economic entitlements such as housing, health and education among others. This has not only strengthened the position of the Judiciary vis-à-vis the other wings of Government, but has also raised its prestige among the general populace. However, this activist disposition of the courts also has its critics.

7 The principled criticism against PIL is that it detracts from the constitutional principle of “separation of powers” by allowing the courts to arbitrarily interfere with policy-choices made by the Legislature and pass orders that may be difficult for the executive agencies to implement. In respect of practical considerations, the criticism revolves around the behaviour of litigants as well as judges. From time to time, it has been urged that the dilution of the requirement of “locus standi” has opened up the floodgates for frivolous cases that either involve the litigants’ private interests or are vehicles for gaining publicity rather than seeking justice for disadvantaged groups.4 It is argued that in light of the increasing case-load before the appellate judges, the PIL cases impose an additional “gate-keeping” role and impede efficiency. From the standpoint of the judges, it is reasoned that quite often there are no

checks against decisions or orders that amount to “judicial overreach” or “judicial populism”.

8 While all of these criticisms have been offered by acclaimed scholars, senior practitioners and sitting judges as well, there is a much more compelling case in defence of the use of PIL. I would like to take this opportunity to present that defence. The main rationale for “judicial activism” in India lies in the highly unequal social profile of our population, where judges must take proactive steps to protect the interests of those who do not have a voice in the political system and do not have the means or information to move the courts. This places the Indian courts in a very different social role as compared to several developed nations where directions given by “unelected judges” are often viewed as unjustified restraints on the will of the majority. It is precisely this countermajoritarian function that needs to be robustly discharged by an independent and responsible Judiciary. At this point, I would like to recall an observation made in the matter of Bihar Legal Support Society v Chief Justice of India:5

The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an 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 … The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community.

II. The “activist” turn of the Indian judiciary

9 Our judicial system is a very visible part of the inheritance from the British Raj. We continue to rely on a sizeable body of statutory law and precedents from the colonial period, with the exception of what is repugnant to our constitutional provisions. However, the framers of our Constitution incorporated influences from several countries and adopted the idea of “judicial review” as opposed to the British notion of “Parliamentary sovereignty”.6 In India, the criteria for the courts to review governmental action is threefold — the fundamental rights

enshrined in Pt III of the Constitution, the reasonableness of administrative actions and the demarcation of legislative competence between the Union and the States.


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