Courting the People: Public Interest Litigation in Post-Emergency India

Abstract

Public interest litigation (PIL) is possibly the best-known and most emulated feature of the Indian judicial system.1 In its inaugural moment in the late 1970s, the Supreme Court of India conceived of PIL as a way to remedy fundamental rights violations for those who, for reasons of impoverishment or other forms of disempowerment, could not approach the courts themselves. To overcome this hurdle, the Supreme Court relaxed standing requirements and held that a petitioner need not be personally injured or aggrieved to bring a fundamental rights violation to court. Rather, any public-spirited individual could sue on behalf of those who could not.2 The Court also engaged in other procedural innovations to effectively address rights violations. It allowed PIL petitions to be filed by way of letters and postcards; appointed lawyers as amicus curiae to assist the Court where the petitioner was not in a position to do so effect ively; and appointed commissioners to gather facts on behalf of the Court so that the in ability of a petitioner to spend resources in furnishing facts was not a hindrance to her ability to seek justice.3 Despite its popularity and frequent invocation, the judiciary’s PIL jurisdiction has increasingly come under attack, mainly for two reasons. First is the perceived neoliberal turn, especially since the 1990s, in the judiciary’s priorities, hermeneutics, and approach to adjudication.4 Second, PIL has been criticized for expanding judicial power without checks or compliance with fair process norms. For example, given the wide remit of PIL cases, courts decide many “poly-centric” disputes, where outcomes impact the rights and lives of people who are not represented before the courts.5 Both these types of criticism believe in the promise of PIL, but argue that in its current practice, PIL is failing its potential and its purpose. In Courting the People: Public Interest Litigation in Post-Emergency India, Anuj Bhuwania argues that this form of criticism talks of PIL “as a romance—if anything, a romance gone wrong.”6 Instead, his thesis is that “PIL was a tragedy to begin with and has over time become a dangerous farce.”7 He takes issue with the canonical view that PIL was a force for good in its inaugural moment but has since been hijacked by those who are not in tune with its original philosophy; thus, leading to problematic outcomes. Instead, Bhuwania argues that the PIL jurisdiction is problematic per se, both in its understanding of the judicial role and in its deployment of judicial power untrammeled by processual limits. In his view, PIL is rooted in a “judicial populism” that rejects procedural safeguards and institutional controls in favor of substantive rationality and “just” outcomes. This purely consequentialist thrust and disregard for process has provided judges with unchecked power which they deploy in very capricious ways. The book has two central components: first, a revisionist account of the origins of PIL in the late 1970s, which he attributes to a power grab by the judiciary in order to undercut political attacks on the institution; and second, ethnographic accounts of three PILs dealing with urban governance issues in Delhi that demonstrate the “protean nature” of PIL, its quotidian working, the kinds of politics it has displaced as well as made possible, and the impact it has had on the lives and material realities of the most marginalized and impoverished sections of society. Bhuwania ties both themes together to then raise concerns with the present narrative surrounding PIL in India. Courting the People is a book that needed to be written and one that should be widely read and debated. It will form part of any reading list on PIL in India, mainly because by naming, calling out, and documenting the public secrets of PIL, the book provides an important counter to the mostly hagiographic narratives on PIL and its dramatis personae. In particular, Bhuwania’s vividly portrayed ethnographic accounts demonstrate the quotidian realities of PIL in India. They tell an alarming story of the judicial politics that PIL has unleashed, how judicial power is deployed, often significantly altering the life circumstances of millions with very little consultation or accountability, and in ways that foreclose, indeed view with suspicion, more democratic and participatory forms of policymaking outside courts. Through these vignettes into the inner workings of PIL, Bhuwania provides a trenchant and compelling critique of the jurisdiction. I am sympathetic to Bhuwania’s concerns about the “protean nature” of PIL, and the kinds of judicial politics it has produced. I use the opportunity to review the book to interrogate PIL further, and to reflect upon how we should theorize the practice of PIL and the deployment of judicial power more generally.8 Section 2 examines Bhuwania’s claims regarding the origin of PIL. Section 3 engages with his concerns regarding the (lack of) procedural elements in PIL. In Section 4, I raise methodological concerns with Bhuwania’s approach. Section 5 concludes with an exploration of the possible futures of PIL. Bhuwania takes issue with the influential thesis that PIL grew out of the remorse that judges felt, and the legitimacy crisis that they experienced, for their abdication of responsibility during the Emergency of 1975–1977, when they essentially provided the government a carte blanche to invade personal liberty.9 Instead, Bhuwania argues that PIL was a product of judicial will to power—an attempt to outmaneuver sustained attacks from a populist government by coopting the logic and rhetoric of populism.10 As the state became more interventionist and attempted to create social and material change through law, the Court redefined its own mandate to mirror the “activist and capacious state.”11 It sought to undercut the political attack on the Court on the charge of being elitist, and claimed the mantle of speaking for the people.12 Beginning in the late 1970s, the Court re-conceptualized its role as not only a partner in but the “vanguard of social revolution”13 envisaged in the Constitution.14 In this reconfigured role, the Court shifted focus from law as a tool of oppression (with the primary role of the Court being to keep the law in check), to the potential of the law to bring about socio-economic change (and the concomitant role of the Court being to work with other branches of state to realize the socio-economic vision of society contained in the Constitution).15 Bhuwania’s account underscores an important point about judicial power: adjudicatory theory and practice are directly related to, and derive legitimacy from, theories of state power. Judicial review is therefore likely to look very different in a nightwatchman state founded on suspicion of law’s oppressive potential, compared to an interventionist welfare state that focuses on law’s potential for social change and emancipation.16 I am flagging this point here but will return to it later. Bhuwania describes how the ideological shift in the Court’s role conception was accompanied by procedural moves that facilitated this new role. Since the rhetoric of populism was founded on an impatience with institutional controls and procedural safeguards, the judiciary too began casting procedures as unnecessary hurdles and mere technicalities that should be set aside in favor of substantively just outcomes in tune with the goals of the Constitution.17 The oft used phrase “procedure is the handmaiden of justice” captures this idea that procedures are useful only to the extent that they help the Court in achieving just outcomes—otherwise procedures can and should be done away with.18 Bhuwania finds these shifts in judicial narrative problematic. For him, the contempt for procedure and privileging of teleological forms of reasoning provide little check on what judges can and cannot do, and make possible the problematic uses of PIL that even less trenchant critics point to. The problem of PIL is therefore not the case of a few bad apples, but a more systemic issue with its conception of the judicial role. There is little to argue with Bhuwania’s explication of the populist turn in judicial discourse in and after the 1970s. This period is marked by an increasing invocation of “the people,” in the name of whom judicial power was being exercised19 ; a purposive turn in hermeneutic practices,20 where interpretations and decisions were justified in relation to broad socio-economic goals of the Constitution21 ; and an impatience for procedure and “legalistic” reasoning which were eschewed in favor of substantive justice.22 However, Bhuwania fails to demonstrate that this juridical shift was a cynical and self-serving exercise motivated by judicial will to power.23 More benign explanations—like the judges conceding to what they felt was a better argument about judicial role and power; or believing in, endorsing, or adapting to the logic of a changing constitutional culture—might suffice to explain how the shift came about.24 Bhuwania does not explain why these interpretations of the Court’s approach are invalid. The vast body of scholarship on constitutional change has emphasized how adjudicatory practices may be transformed without formal amendments, because of changes in the underlying constitutional culture.25 If the shifts Bhuwania discusses resulted not so much from a power grab but from a recognition of new articulations of injustice, new constitutional aspirations, and emerging constitutional legalities, then our evaluation of the practice has to be suitably modified. We might agree, for example, that the role shift was required, but contest the specific forms through which the new judicial role was instantiated. Our evaluation of the future of PIL might also change. If the broad shift was necessary, then we need to focus on how to better implement the new judicial role. If the broad shift was simply a self-serving tool in the hands of the judiciary, we may favor its rejection over its reform. Bhuwania claims that the shift in judicial discourse allowed the Court to arrogate to itself untrammelled, unaccountable power, free of the constraints of process or prin ciple, legitimated and disciplined only by very capacious notions of social justice and public interest. As these notions of social justice and public interest changed, so did the (dis)enchantment with PIL. Referring to the well documented shift in priorities in PIL from poverty to “bourgeois environmentalism” to anodyne governance,26 Bhuwania argues that the “‘inherent instability of populism” allows such fundamental shifts in priorities to take place,27 and that disregard for processual safeguards allows judges with undesirable (in this case neoliberal) ideologies to act upon these ideologies in the problematic ways that he discusses throughout the book.28 As a corollary, the problem with PIL is not that of good and bad judges, or good or bad outcomes in distinct cases, but a problem of disregard for process.29 It follows from this argument that if we can fix the process, we can displace, or substantially constrain, (problematic) ideology. Bhuwania overstates the ability of pro cess to constrain ideology. Rule skeptics of various hues, from realists to radical Critical Legal Studies scholars, would disagree with him.30 To take a comparative example, the US Supreme Court which does not play fast and loose with questions of process, is notorious for how its judges deploy process and principle to reach results consistent with their political and social ideology.31 More fundamentally, ideological shifts take place even within formal structures of the law, as scholarship on constitutional culture and constitutional change in comparative contexts has demonstrated.32 Bhuwania would have benefited from engaging with this literature. As it currently stands, to link the ideological shifts in PIL to the lack of processual safeguards is to give too much credit to process and too little discredit to judges themselves for the new forms of judicial rationale deployed by them. PIL was envisaged to be collaborative rather than adversarial, where the Court, the petitioner, and the state came together to resolve pressing fundamental rights violations. However, as Bhuwania’s examples show, if it was meant to take suffering seriously,33 the use of PIL in the present fails to live up to this mandate. The imagery of “the oppressed and the bewildered”34 whose “suffering” PIL was meant to ameliorate has at best meant a paternalistic denial of agency to such people(s), in whose name legal elites gather to take decisions without any necessary engagement with those whose lives are impacted by such decisions. The collaboration is limited to court-appointed legal and technical experts,35 who determine how issues are framed, 36 what material and evidence gets presented in court, what the court should focus on, how it should decide the matter, the guidelines or remedies it should pass, etc.37 This technocratic approach to decision-making displaces democratic politics on these very issues.38 The greatest impact of Bhuwania’s book is likely to be in naming and documenting these phenomena, to disrupt the positive consensus around these practices in legal practice and academia. Bhuwania focuses on the procedural elements of PIL, on the understanding that “PIL is primarily a revolution in judicial procedure.”39 For this reason, he does not discuss the changes in substantive doctrine that brought about, and fed into, the PIL phenomenon. The ubiquitous presence of PIL was made possible by an expanded reading of rights. The Supreme Court had to ground the PIL jurisdiction in article 32 of the Indian Constitution, which allows it to entertain original petitions from citizens for violations of fundamental rights. Therefore, an expanded reading of the scope of rights was integral to expanding the scope of PILs. This was achieved primarily through the expansion of the scope of article 21, through reading directive principles and international law norms into the provision.40 The interpretative techniques used to expand rights (but at the same time dilute limitations thereon) were grounded in the same teleological reasoning that Bhuwania describes in his book. So, while on the one hand directive prin ciples gave content to the “right to life” under article 21,41 they were also used to expand the understanding of “reasonable” law that could limit such a right.42 Similarly, while the fundamental freedoms guaranteed by article 19 could be given an expanded definition, laws framed to advance directive principles of state policy were viewed as “reasonable restrictions” on such rights.43 This interpretative technique has expanded the power of the judiciary (by extending the kinds of claims that they can entertain), but at the same time it has expanded the power of the state to sidestep fundamental rights. This, too, is part of the PIL story, and is likely to get lost in focusing only on the procedural aspects of PIL. Bhuwania employs a method of constitutional ethnography to excavate the quotidian reality of PIL. If, as Kim Lane Scheppele (from whose work Bhuwania borrows this idea) suggests, his attempt is to provide “a set of repertoires that can be found in real cases and that provide insight into how constitutional regimes operate,”44 then he is definitely successful in his enterprise. However, since he uses these repertoires to question the entire PIL jurisdiction, Bhuwania’s method becomes a problem. His case studies all deal with PILs relating to urban governance in Delhi. He claims that these cases have been selected to illustrate the kinds of powers that PIL confers upon judges. His emphasis is not on bad outcomes in these cases but on the “profound injustice” of the procedure adopted in them.45 We can all agree that these cases were problematic; but since the cases are so focused in terms of issue and location, without knowing more, it is hard to understand whether the problems he highlights are systemic or whether these are a few bad apples in an otherwise well-functioning system. Further, Bhuwania’s case studies—the Delhi Vehicular Pollution case,46 the Delhi Industrial Pollution case (in its many iterations),47 and Delhi Slum Demolition case48 —are all examples of bad process and bad outcomes. They instantiate Bhuwania’s points about the ways in which procedural safeguards are given a go-by in PIL and the impact that this has on the lives of those affected. Missing in this narrative are the counterfactuals that would explain why these cases were able to achieve what they did. Take, for example, Vishaka v. State of Rajasthan,49 a 1997 case dealing with sexual harassment in the workplace. The Supreme Court recognized that sexual harassment is a violation of women’s rights to equality, dignity, and freedom of occupation. In the absence of any legislation on this issue, the Court passed extensive directions to all employers for setting up redressal mechanisms. These directions were to operate until Parliament legislated on the issue. In 2013, Parliament passed such a is in Indian legal and is by most accounts a PIL in terms of its However, the directions in the case have been with so much so that the Supreme Court was itself in violation of the guidelines for is it that the Vehicular Pollution case was able to on public in Delhi but its had little impact on the lives of is it that the courts could get the state to take in Bhuwania’s case studies in of the Industrial Pollution but in the of the Vishaka accounts for the and impact of and not of There a story to be here about outside the judicial that make PIL by the of to accounts of the ways and through which the of courts the lives of people and the through which they are can one understand the quotidian realities of PIL. In such a PIL would not be only about judges or and change not only because judges or extensive contempt The impact of PIL often from reasons the judicial such as political with In this it is not only the process of PIL that specific kinds of politics Vishaka would have such of the of PIL. If we agree with the problems by PIL, what is the Bhuwania to argue for a judicial role conception grounded in influential theory of idea that the scope of judicial review is to the of the democratic Bhuwania does not explain why of the judicial role is for the Indian work is part of a of that were to concerns about the in judicial review in the The entire legitimacy as well as to grounded in a very conception of the state and and judiciary and other branches of As Bhuwania in his India (and indeed many constitutional have adopted a more interventionist conception of the is this of judicial for in such This to the point about adjudicatory practices being rooted in constitutional and theories of state power. In a legal culture that of the state as interventionist and welfare the from the the understanding of legal the of upon the of justice and injustice, and the for redressal through the likely to be very distinct as compared to a legal culture grounded primarily in of power. judiciary that does not address the constitutional aspirations, and of the constitutional order in which it is is likely to a legitimacy the scope of judicial and how this power should be through what of with whose on what and to what has to take place the constitutional of the specific constitutional This does not the of comparative Bhuwania the point that just as we should not into the of judicial review simply because it provides a we should not also from the only because it is a this is and it is not argument that the Indian is or that we cannot from are other that are more as for India. The emerging on which to the role of courts in the political and material realities of might be more a on the issue of the role of the does matter, even if it

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 82 citations exist upstream.