INDIA

[Calcutta; Special to JURIST] In my first report from India, I referred to the 'judicial activism' of the Supreme Court of India (SCI for short). One tool of such activism has been " Public Interest Litigation" (PIL) or "Social Action Litigation", as some jurists prefer to call it in order to distinguish the Indian experiment from the PIL prevalent in other countries of the world.

The initial inspiration for Indian PIL came from the American concept of Public Interest Litigation and the class actions of the 1960s. But PIL in India has gone far beyond that, and has been endowed with bold procedural innovations in keeping with real life conditions. It is said to be the strategy developed by the SCI to secure the observance of the law by the Government and its agencies, and to extend social justice to the large masses of underprivileged persons in the country. It has been mainly piloted by the Court itself, with initiative and imagination. Considerable judicial time has been invested in the venture, even though the Indian Courts were, and still are, suffering from docket congestion.

The Courts' "active acceptance, of responsibility for the pursuit of objects, well outside the bounds of conventional litigation" -- as Lord Bingham, the Lord Chief Justice of England and Wales put it in his Law Day address on the occasion of the completion of 50 years of the SCI, -- would be "striking to a British observer, perhaps to almost any non-Indian observer." But the reason for this anomaly has been explained by Justice Bhagwati, a former Chief Justice of India and a pioneer in this field: "The weaker sections of Indian humanity have had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of their rights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice." PIL is said to be an attempt on the part of the judiciary to bring justice "to the door steps" of the poor and the needy, who form the vast majority of the population in India, and who have historically been the worst victims of social injustice, which tends to perpetuate itself over time.

Since 1977, the SCI has been much concerned with "social justice". That year marked the beginning of the so called "activist phase" of SCI jurisprudence. Where did this come from? Was the Court asserting, covertly, a political role for itself, as some commentators thought? Was it an indulgence in populism on the part of the Court, as a few cynics initially suggested? But the SCI has remained firm in its avowed mission and maintained that it was the Constitutional duty of the Court to provide "social justice" to the masses. To appreciate this stand, reference to certain features of the Indian Constitution may be useful.

The Constitution of India has guaranteed to the people of India certain basic democratic rights called the "Fundamental Rights" (Articles 13 to 32), akin to the American Bill of Rights. The Fundamental Rights include the right to equality before law; prohibition of discrimination on the ground of religion, race, caste, sex, place of birth, freedom of speech, of assembly, of movement, of forming association, of residence, of profession, trade or business; protection of life and liberty; protection against arrest and detention, and various other rights. These rights are enforceable against the State and its agencies. Any person aggrieved by a breach of any of his rights may move the local High Court or the SCI seeking enforcement of the right. Any law enacted by the legislature or any executive action may be declared to void by the Court in the event of breach. The Court may also remedy any governmental inaction or neglect by issuing a writ or a mandate to the executive authority. The right to judicial remedy is itself a guaranteed right.

The Constitution also contains a set of "Directive Principles of State Policy" (Articles 37 to 51). These "Principles", though not immediately enforceable, have been declared to be "fundamental in the governance of the country". The Constitution establishes that it shall be the duty of the State to apply these principles in the making of the laws. These provisions are meant to give effect to the professed objects of the Constitution as expressed in its Preamble: "to secure to all its citizens Justice, social, economic and political; Liberty, of thought, expression, belief, faith and worship; Equality of status and of opportunity ;and to promote among them all Fraternity assuring the dignity of the individual..." One of the Directive Principles reads: "The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life." (Art .38) Another Principle reads: "The State shall secure that the operation of all the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide legal aid, by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." (Art. 39A)

Since 1977 the SCI has been laying emphasis on these Directive Principles in interpreting the laws and ascertaining the true scope and ambit of the Fundamental Rights. On more than one occasion after 1977, the SCI lamented that the goals set forth by those lofty Principles were not being adequately pursued by the Executive and the Legislature. The SCI asserted that unless those Principles were given their due priority, many of the Rights of the people would remain only on paper and would appear empty verbiage to the masses in India -- high sounding, but devoid of any real content. If the poor and the under privileged could not reach the Court, the Court had to reach them. Otherwise the Court would remain an institution only for the wealthy and the fortunate few, who would keep the Court busy with their expensive litigation. This was Legal Aid at its most basic.

To make its strategy feasible, the SCI had to make two bold procedural innovations. The first was to dispense with the age old theory of "locus standi," or the rule of "standing", which ordinarily permits only the 'person aggrieved' to approach the Court and to establish his right and its violation. The SCI found this to be the chief hurdle in providing access to justice to the poor and the disadvantaged. So the rule of standing was dispensed with in the case of PIL. The SCI allowed any bona fide public spirited individual or body to move the Court on behalf of those who were unable to approach the Court directly, due to their inherent constraints, one or the other. Thus it was provided that in the event of a legal injury being caused to a person or to a class of persons, who, by reason of their poverty or disability or disadvantaged position, could not approach the Court for relief, any member of the public acting in public interest would be entitled to move the Court on his/their behalf.

But the SCI soon realized that this enabling provision, by itself, would not be sufficient to induce a person acting 'pro bono publico' to shoulder the burden of a litigation with its consequential costs and hassles. To overcome this constraint and to make it convenient and inexpensive for public spirited persons to approach the Court, the SCI introduced a second simplification in the procedural law: merely writing a letter to the Court would be sufficient to allow the Court to take cognizance of the matter and initiate necessary proceedings. This provision has indeed helped voluntary organizations and altruistic individuals to bring to notice of the Court matters which needed urgent remedial actions in public interest. At the request of the Court even leading counsels have came forward to assist the Court, as amicus curiae, and have rendered free services most willingly. Similar help has been obtained by the Court from experts in other fields and specialist organizations as and when required.

Obviously PIL is completely different in operation from ordinary adversarial litigation. The entire methodology of decision making is unorthodox - in a genuine PIL there should not be any real adversary. Though the litigation is directed against the State or its agencies, whose action or inaction is the cause of grievance, they are not in the position of adversaries. They must necessarily be equally interested in ensuring that justice is done in the public interest, and that those who have been denied justice should get relief according to the Constitution. So it is expected that the State and its agencies lend a helping hand in genuine PIL by bringing all relevant materials to the notice of the Court and assisting in delivering distributive justice. This may appear to be an over–simplification of the conflict of interest that usually exist in Public Law disputes, but the fact remains that in many matters of PIL the Court is able to derive enough materials and assistance from the Government and its officers, including the Law Officers, to achieve justice. It is the leadership of the Court in steering the cause that makes all the difference.

Another problem that has required sorting out in PIL is that of the burden of proof and the onus of producing evidence. The public spirited person who might write a letter to the Court to initiate an action could not be expected to produce the evidence or the necessary materials which would enable the Court to decide the matter. The SCI tackled this problem initially on an ad hoc basis. In some cases, fact-finding agencies were appointed -- State-funded Commissions, responsible public officers such as the District Magistrates or District Judges, and specialized non-government organizations (NGO)or social research organizations and the like, have all been entrusted with the task of gathering information, collecting evidentiary materials and even making recommendations on the basis of their expertise. More recently, however, the SCI has suggested that instead of depending on such ad hoc arrangements it may be worth while to have an independent fact-finding agency consisting of professionally competent persons to assist it.

Finally, in PIL the Court cannot wash its hands after making an order or pronouncing the judgement. It is important to ensure that those are implemented in real terms. On many occasions the SCI, as an activist court, has had to go into the functional aspects of implementation of the judicial verdict, so as to make it effective and real. The Court has even gone to the extent of spelling out the logistics of the implementation of its order and carried on subsequent monitoring of the action taken by the authorities by insisting on the submission of periodic compliance reports.

Within the last two decades, the SCI and the various state High Courts have covered a vast range of subject matters within the ambit of PIL. These included giving relief to unorganized workers in the matter of their wages and working conditions, abolition of bonded labor, welfare of pavement dwellers who have no shelter of their own, health and hygiene of slum dwellers, land use, housing issues, civic services, environmental issues, consumer issues, educational matters, prisoners in jail, prevention of torture of under trial prisoners, maintenance of jails, dealing with custodial violence, welfare of women prisoners, of delinquent children, and surprisingly enough, also matters like appointment of judges and independence of the Judiciary (at the instance of lawyers), and many other diverse subjects. The meticulous detail with which the Court investigated these matters has been remarkable. On the basis of this litigation the Court directed the Government to give effect to a beneficial enactment, framed detailed schemes for the running of a children's' home, spelling out particulars of day to day administration, and in the case of a mental hospital, the Court even specified the allowance to be made for food per patient per day and ordered that each patient be given a blanket; arranged for the proper management of a protective home for girls, giving detailed instructions as to installation of exhaust fans and mosquito nets, the provision of cooking gas in the kitchen and access to telephone and electrical rewiring of the building and also dealt with matters like prevention of pollution of the river Ganges, reservation of a jungle as reserve forest, admission to schools and holding of examinations in colleges.

But there have been abuses and aberrations as well. The test of Locus used to be a sound screening process at the entry level of any litigation. In its absence, phony PILs which were dressed up private disputes have been passed off as genuine ones, deceiving the Court at the threshold. The lure of soft justice and procedural latitude has induced many unscrupulous persons, with private vested interest, to play such games, donning the guise of a public spirited person or organization. Thus actions aimed against a business rival's construction scheme have masqueraded as an environmental PIL; the unsuccessful bidder at a public tender has challenged the execution of a public development project, raising issues of health hazard or ecological imbalance, and so on. Even if the Court has been able to call the bluff at the end, the defrauding parties have already reaped the benefit of an interim order of stay. And needless to say, in the process, they cause huge wastage of judicial time and also serious detriment to bona fide private rights. These instances call for greater caution and restraint on the part of Courts already suffering from docket congestion.

Pradip Ghosh
JURIST India Correspondent

Senior Advocate
Calcutta, INDIA

August 23, 2000

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