Case for inclusive courts

In the past few decades, courts have largely failed to protect crucial rights affecting the poorest and the most vulnerable.

This is an important book on public interest litigation (PIL) in India. It traces the origins and history of the development of PIL and argues that the enormous powers that the PIL confers upon the appellate judiciary stem from its populist character. In its different chapters, the book outlines the pitfalls and drawbacks of PILs, and strongly critiques the political role that they have come to play in the country. Anuj Bhuwania argues that PIL procedures evolved by courts are undemocratic and exclusionary, and that the new generation of PILs entertained by the courts is of a very different kind from the original votaries of PIL.

What Justice P.N. Bhagwati termed “public interest litigation” in the 1980s, Prof. Upendra Baxi chose to rename “social action litigation”. There is a reason for this distinction. The term “public interest litigation” originated in the United States, and it meant litigation in the interest of the public. By terming it “social action litigation”, Prof. Baxi envisaged it to be litigation and judicial activism aimed at social transformation and access to justice for the most marginalised and vulnerable.

Right to sue In PUDR vs Union of India , in 1982, Justice Bhagwati defined PIL to be any litigation which was a collaborative effort between the petitioners and the state or public authorities to secure the observance of constitutional or legal rights for the most vulnerable. In order to enable this, the Supreme Court devised an expanded notion of locus standi or the right to sue. Under this expanded notion of standing, any member of the public, acting bona fide, could move the court for judicial redress of any legal injury or wrong suffered by such person or class of persons, and this could be done even by writing a letter to the court. It was also expanded in cases where there was a general breach of public duty by the state or a public authority or from the violation of the Constitution or any law. Justice Bhagwati stated: “Having regard to the peculiar socio-economic conditions prevailing in the country where there is considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only a person wronged can sue for judicial redress were to be blindly adhered to and followed and it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may be available to the lowly and the lost.”

This expansion of standing led to an incredible opening up of access to courts for marginalised groups that would otherwise have been unable to do so. Thus, in Fertilizer Corporation Kamgar Union vs Union of India , when the factory plants and equipment of fertilizer factories set up by the Fertilizer Corporation of India were being sold, the Supreme Court with the expansion of locus standi allowed the workers’ union to file a petition challenging such a sale as it directly affected their right to livelihood. This would not have been possible without the expanded procedural rules for standing.

The central argument of “Courting the People” is that with the development of the PIL jurisdiction, the Supreme Court devised new procedures, thereby giving itself unlimited power, and dispensed with the existing rules of procedure as unnecessary, resulting in a kind of panchayat justice being delivered. Bhuwania argues that “PIL was a tragedy to begin with and has over time become a dangerous farce.” These are strong claims and I will respond to them in this review.

Some of the special procedures Bhuwania refers to are expansion of locus standi , setting up of court-appointed fact-finding commissions, the appointment of amicus curiae, the expansion of remedies and the granting of continuing mandamus orders. Only the expansion of standing is a special procedure devised by the Supreme Court for enabling PILs. All other special procedures Bhuwania refers to are used by courts in all kinds of proceedings. This is demonstrated by Bhuwania himself when he refers to the ad hoc manner in which the Supreme Court agreed to the settlement in the Bhopal gas leak case in Union Carbide vs Union of India , which was not a PIL but an appeal on claims made under the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Act, 1985, for compensation. Thus, his argument that “PIL styled” procedures are used indiscriminately by courts is weak because these procedures neither originated through public interest litigation nor were propagated by it.

In the chapter titled “Competing Populisms”, Bhuwania discusses the trend of the Supreme Court appointing amicus curiae in PILs.

The concept of amicus His criticism of the manner in which the amicus curiae is appointed is important and useful because there is not much literature on how an amicus curiae is appointed in India. Amicus curiae literally means “friend of the court”. In many cases, courts have the discretion to inform themselves of the facts beyond the scope of judicial notice and act upon them in order to prevent miscarriage of justice. A court may frequently require more than the assistance that is usually provided by counsel to the parties to a case. A custom was thus adopted of allowing counsel unconnected with a case to give advice, either on the request of the court or by its permission, as amicus curiae.

However, the judicial use of the amicus curiae status has undergone much change and modification, not just in India but in other Anglo-American jurisdictions as well. In the United States, it has evolved into a means of representing third party interests potentially affected by ongoing litigation. As Michael K. Lowman writes in his article in American University Law Review¹ , when higher courts had to confront ever more complex cases and sought innovative techniques to manage judicial resources and secure fair representation of interests outside their jurisdiction, the device of the amicus curiae provided a potential solution. Judges sought to maximise the amicus curiae’s adaptability and allowed “litigating amicus curiae” to participate in matters before their courts.

In India, too, as evidenced by Bhuwania, courts allow amici to perform various roles normally reserved for party participants in the litigation, such as responding to pleadings of the parties, submitting reports, reviewing evidence and even making submissions on behalf of other intervenors. Courts in India have appointed “litigating amicus” not only in PILs but also in a wide range of cases. Recently the Supreme Court appointed two senior counsels as amici curiae in the criminal appeal in the Nirbhaya case. Even the National Human Rights Commission (NHRC) petitions that Bhuwania refers to consisted of an appeal against the order of acquittal by a fast-track court in Gujarat, and a separate transfer petition where the NHRC sought for the trial of the Gujarat riot cases outside of Gujarat and the Supreme Court appointed an amicus.

In trying to deal with the complexity of the cases before them, courts have enlarged the role of the amicus curiae to such extremes that it puts at risk the procedural norms of hearing parties in a fair manner. In some instances, as Bhuwania has pointed out, the litigating amicus even replaces the petitioner. He points out how in the T.N. Godavarman Thirumulpad and Others vs Union of India PIL known more commonly as the “Forest Case”, filed originally to protect forest areas in the Nilgiris and Kerala, the amicus was filing applications for directions and court orders and had almost taken the role of the petitioner’s counsel.

As Lowman notes, when courts are faced with large, unwieldy petitions that often involve multiple parties and complex issues—social, factual or scientific—that demand more judicial time and resources, they see the use of the amicus curiae as a potential solution to overcome some of these difficulties. But in their anxiety to address these problems, the enlarged role of the amicus has often led to the ousting of the affected persons intervening as parties or even being heard—exactly what the amicus was supposed to aid, not deter. The High Courts and the Supreme Court often appoint an amicus in PILs from a handful of well-known senior counsels. Because of the great influence many of these senior counsels wield and the complexity of the petitions, the courts give them roles and power that go much beyond the powers of an amicus.

If we want to revitalise our PIL process substantively, the role of the amicus curiae should be used in a balanced manner, where it remains flexible, but with safeguards. Courts should ensure that the amicus does not cross the threshold and replace parties; they should appoint an amicus based on his/her special expertise and knowledge, allowing experts to come in; they should also ensure that the amicus is not allowed to decide on intervening parties, as to who gets heard and who does not. This would ensure that the amicus does not usurp the powers of the court.

Anti-poor bias In the chapter titled “PIL as a slum demolition machine”, Bhuwania reviews a set of cases in the Delhi High Court centred on slum evictions. He argues that the kind of power the PIL vests in judges “actually empowers them to act on their biases (aesthetic, anti-poor or otherwise) and that too with a free hand, in a most expansive manner, unconstrained by technicalities and rules of adjudication, and on such flimsy evidence as random photographs”. This chapter is informative and interesting because it discusses threadbare many of the slum eviction cases of the Delhi High Court, provides extracts of some of the orders and throws light on case proceedings. However, would it not be more appropriate to understand the issue discussed in this chapter in terms of what happened in these particular cases in the Delhi High Court and not as a PIL-induced problem?

The Delhi High Court cases referred to in this chapter were mainly PILs filed by resident welfare associations for the removal of slums. There is an argument that often slum dwellers were not made parties to such slum eviction petitions, but the chapter mentions that in the lead petition in Pitam Pura Sudhar Samiti vs NCT Delhi, there were a batch of petitions filed by the slum dwellers themselves and all the petitions were decided together. The chapter also describes a controversial judgment of the Delhi High Court in the Okhla Factory Owners Association case where it set aside the slum redevelopment policy that was in place. The Supreme Court set this judgment aside subsequently. If these cases were used to support an argument against public interest litigation, that would not explain why the Supreme Court set aside the Delhi High Court orders under the very same PIL jurisdiction.

Bhuwania’s argument that the High Court would have been restricted by procedural norms in non-PIL cases but was able to pass orders to carry out large-scale slum demolitions only because of the malleable jurisdiction of the PIL is also flawed. The courts have wide procedural powers and have often used them in a completely ad hoc manner even in non-PIL cases. One glaring example would be the manner in which the Supreme Court ordered a medical check-up of Justice C.S. Karnan and subsequently issued an arrest warrant against him without any procedural basis for the same. Hence, we need to address the manner of legal informalism in which our courts function and understand that this is a problem that affects not just PILs but all adjudication in general.

I agree with Bhuwania's observations that the courts are biased against the poor. There is some, although not sufficient, empirical work done on this subject. The anti-poor bias of the courts has been reflected in the death penalty study by NLU Delhi (which showed the more than 75 per cent of the prisoners on death row were from economically vulnerable backgrounds), as also in the work of Balakrishnan Rajagopal. However, this only shows that such a bias, if present, is not PIL-induced and is indeed a core problem with our courts and judges that needs to be tackled head-on.

Going forward So where do we go from here? While Bhuwania dismisses PIL as dangerous and its procedures as undemocratic, I am far more optimistic of the role that the courts can play in social transformation through social action litigation. The radical procedural innovation of liberalising standing has led to the protection of the right to food, the right to livelihood, the right to health, and the right against sexual harassment and made justiciable innumerable other socio-economic rights that would not have been possible otherwise. Bhuwania’s caution against PILs should be read, instead, as an argument to improve PIL procedures in order to revitalise social justice litigation and restore legitimacy to the courts.

First, there has to be some measure of predictability to the process of the courts. That this is not limited to PILs is endorsed by Bhuwania himself when he states: “The institutional impact of such legal informalism is not limited to PIL jurisdiction alone. It has infected every part of the legal system.” As Balakrishnan Rajagopal succinctly states in his piece “Judicial Governance and Ideology” ² , despite its laudable activism in human rights, the “Supreme Court’s record is characterised by a serious measure of substantive ad hocism”.

In a particular case, the court might get extremely technical and legalistic, whereas in another petition, it would use its broad constitutional adjudication powers to pass unprecedented orders without insisting on procedure. This unpredictability is heightened by the fact that there are different judges sitting in different benches and a single petition can completely change its course depending on the judge hearing it. For social justice litigation to be effective, there has to be predictability of both substantive and procedural aspects.

Secondly, if we need to restore legitimacy to PILs, as Krishnaswamy and Saikumar note in their piece titled “Restoring Legitimacy to PILs” ³ , we need to ensure that the radical procedural innovation of the Supreme Court in PIL is used for the truly unrepresented, for those who do not have access to courts, and not to provide a forum for partisan interest groups.

And, finally, in response to the strong anti-poor bias pointed out by Bhuwania in the slum removal cases, it is a fact that in the last two decades, with a few exceptions, courts have failed to protect crucial rights affecting the poorest and most vulnerable such as the right to housing, to livelihood and tribal rights,among others, while they have rushed in to protect the right to environment and other civil and political rights.

Social action litigation in its revitalised avatar should reaffirm its goals of access for the most marginalised. The courts need to ensure that the poor, the homeless, slum dwellers, Dalits, sexual minorities, women, persons with disabilities and minorities are not only not excluded but also placed centre stage if they want to play a significant role in social transformation.

^Footnotes:

^{1. Lowman, Michael K. "The Litigating Amicus Curiae: When Does the Party Begin after the Friends Leave", American University Law Review 41, no.4 (1992): 1243-1299.}

^{2. B. Rajagopal, " Judicial Governance and Ideology" in C. Raj Kumar and K. Chockalingam (eds.) 'Human rights, justice, and Constitutional Empowerment' (OUP New Delhi 2012)}

^{3. S. Krishnaswamy and R. Saikumar "Restoring Legitimacy to PILs", The Hindu , May 3, 2014, and available at: https://www.thehindu.com/opinion/lead/restoring-legitimacy-to-pils/article5970631.ece}

Jayna Kothari is an advocate practising in the Karnataka High Court and in the Supreme Court and is executive director, Centre for Law and Policy Research, Bengaluru.