Crafting The Nation in Colonial India

Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?
Author(s): Jamie Cassels

Source: The American Journal of Comparative Law, Vol. 37, No. 3 (Summer, 1989), pp. 495-519
Published by: American Society of Comparative Law
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JAMIE CASSELS
Judicial Activism and Public Interest Litigation in

India: Attempting the Impossible?
I. INTRODUCTION
The enactment of the Canadian Charter of Rights and Freedoms
was hailed by many social activists and progressive lawyers as an
event worth celebrating. It was declared a 'mandate for new ways of
thinking about law',' and groups representing the underprivileged,
the handicapped, ethnic minorities, aboriginal Canadians, women,
and labor perceived in the Charter a new forum within which social
injustices might be exposed and rectified.2
Others sounded a more sombre note, suggesting that these
hopes were misplaced.3 The critics argue that constitutional rights,
rooted in a liberal understanding of society, do less to improve the
welfare of the disadvantaged than to entrench the existing maldistri-
bution of wealth and power.4 A purely formal understanding of
equality serves to exclude from legal comprehension those very as-
pects of social life that ensure inequality and domination. A purely
negative understanding of liberty, wherein governmental action is
portrayed as the primary enemy of human freedom,5 leads to the
view that the only function of judicial review is to police those very
JAMIE CASSELS is Associate Professor of Law, University of Victoria. I would like to

express my gratitude to the Social Sciences and Humanities Research Council of
Canada for helping to fund this research, and to the Indian Law Institute for the use
of their research facilities. I would also like to thank Maureen Maloney, Andrew
Petter and Murray Rankin. Finally, I wish to thank the staff of the PIL Cell at the
Supreme Court of India.
1. Lyons, "The Charter as a Mandate for New Ways of Thinking About Law," 9
Queen's L. J. 241 (1984).
2. For an account of the 'popping of champagne bottles and the tinkling of
glasses' in response to the Charter, and the presentation of a more sober view, see
Petter, "The Politics of the Charter," 8 S. Ct. L. Rev. 473 (1986).
3. Petter, id.; Monahan & Petter, "Developments in Constitutional Law: The
1985-86 Term," 9 S. Ct. L. Rev. 69 (1987).
4. Trubek, "Public Policy Advocacy: Administrative Government and Repre-
sentation of Diffuse Interests," in Mauro Cappellitti and Brian Garth (eds.), Access
to Justice (1979).
5. As Ronald Dworkin suggests, constitutional rights are 'trumps' that can be
played against collective decisions: Taking Rights Seriously (1978). It should be
noted that modern liberal theory recognizes the need for government action to ame-
liorate inequality; see, for example, John Rawls, A Theory of Justice (1970). Never-
theless, the primary function of individual rights is to restrain such measures.
Rawls' entire project can be understood as an attempt to reconcile a model of distrib-
495

496 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 37
forms of collective action which are necessary to redress inequality.6

Strategic considerations, including the composition and ideology of
the judiciary, the costs of litigation, and the unequal distribution of
legal resources militate against litigative strategies aimed at social
change. The legalization of politics7 threatens to divert, manage, and
contain the demands of social activists for a more humane social
order.
This essay adopts a comparative approach to consider the ques-
tion whether constitutionally-based public interest litigation8 offers
a viable strategy for improving the lives of the less advantaged mem-
bers of society. It provides an account of the recent efforts of the
judiciary of another country, India, to give substance to the promises
of law and to extend the benefit of the constitution to the dispos-
sessed and disenfranchised. While occurring in a very different cul-
ture with unique social problems and priorities, India's formal
constitution and modern legal tradition are not unlike that of Can-
ada and the United States. Yet the study is one of contrasts. It dem-
onstrates the limitations upon public interest litigation and the
sweeping innovations that must take place before such strategies can
play a meaningful role in improving the lives of the poor.
II. JUDICIAL ACTIVISM

India is a federal republic with a parliamentary system of gov-
ernment with a strong central administration and a (titular) presi-
dent. The preamble to the Constitution expresses a commitment to
secure to all citizens of India 'justice, social, economic and political;
liberty of thought, expression, belief, faith and worship; equality of
status and opportunity; and to promote among them fraternity as-
suring the dignity of the individual and the unity and integrity of
the nation.' In addition to establishing the institutions of state, the
constitution guarantees specific enforceable fundamental rights9 and
non-justiciable 'Directive Principles' of state policy and
governance.'0
utive justice with a traditional liberal conception of individual liberty wherein the
latter constrains the former.
6. Monahan & Petter, supra n. 3 at 75.
7. Mandel, "The Rule of Law and the Legalization of Politics in Canada," 13
Intnt'l J. Sociol. L. 273 (1985).
8. The term 'public interest litigation' is used in both a narrower and broader
sense than may be familiar: narrower in that it refers primarily to constitutionally-
based efforts to improve the welfare of the less advantaged members of society;
broader in that it is not restricted to the advocacy of generalized interests such as
environment and other regulatory matters.
9. Part III, Arts. 12-35.
10. Part IV, Arts. 36-51. These principles reflect one way in which the Indian
constitution differs markedly from that of Canada and the United States, reflecting
as they do a more positive commitment to human welfare measures, and perhaps li-

1989] CASSELS: PUBLIC INTEREST LITIGATION IN INDIA 497
Painfully aware of the limitations of legalism, the judiciary of

India has struggled over the last decade to bring law into the service
of the poor and oppressed. Under the banner of Public Interest (or
Social Action) Litigation (PIL) and the enforcement of fundamental
rights under the Constitution, the courts have sought to rebalance
the distribution of legal resources, increase access to justice for the
disadvantaged, and imbue formal legal guarantees with substantive
and positive content. Originally aimed at combatting inhumane
prison conditions1" and the horrors of bonded labor,12public interest
actions have now established the right to a speedy trial,13 the right
to legal aid,14the right to a livelihood,15 a right against pollution,16 a
right to be protected from industrial hazards,17 and the right to
human dignity.18
A number of distinctive characteristics of PIL can be identified,
each of which is novel and in some cases contrary to the traditional
legalist understanding of the judicial function. Unlike the case of
public interest litigation in Canada or the United States, the legal
aid/public interest movement in India has been almost entirely initi-
ated and led by the judiciary.19 The movement has been widely dis-
cussed by judges in the popular press and academic literature, and it
censing the courts to be more expansive in their interpretations of legal rights. Art.
38, for example, exhorts the state 'to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice, social, eco-
nomic, and political shall inform all institutions of national life.' Art. 39 enjoins the
state to direct its policy towards securing: 'a) . . . the right to an adequate means of
livelihood; b) that the ownership and control of the material resources of the com-
munity are so distributed as best to subserve the common good; c) that the operation
of the economic system does not result in the concentration of wealth and means of
production to the common detriment . . .'
11. Sunil Batra v. Delhi Administration, (1978) A.I.R. 1978 S.C. 1675; later, see
Upendra Baxi v. State of Uttar Pradesh (1983) 2 S.C.C. 308.
12. People's Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C.
1473; Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161; A.I.R. 1984 S.C.
802.
13. M.H. Hoskot v. State of Maharasta, (1978) 3 S.C.C. 544, A.I.R. 1978 S.C. 1548;
Hussainara Khatoon v. Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1360; 1369;
1377.
14. Hoskot, supra n. 11; Hussainara Khatoon, supra n. 11; Suk Das v. Union Ter-
ritory of Arunchal Pradesh, (1986) 4 S.C.C. 401; Sheela Barse v. Union of India,
A.I.R. 1983 S.C. 378.
15. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545. A.I.R. 1986
S.C. 180.
16. Rural Litigation and Entitlement, Kendra, Dehradun v. State of Uttar
Pradesh, A.I.R. 1985 S.C. 652.
17. M.C. Mehta v. Union of India, (1986) 2 S.C.C. 176, A.I.R. 1987 S.C. 965; condi-
tions modified (1986) 2 S.C.C. 325. A.I.R. 1987 S.C. 982.
18. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 2
S.C.R. 516, A.I.R. 1981 S.C. 746; Upendra Baxi v. State of Uttar Pradesh, (1986) 4
S.C.C. 106.
19. Bhagwati, "Judicial Activism and Public Interest Litigation," 23 Colum. J.
Transnat7 L. 561 (1985).

is clearly informed by strong socio-political views and commitments.

Its distinctive characteristics include: a) liberalization of the rules of
standing; b) procedural flexibility; c) a creative and activist interpre-
tation of legal and fundamental rights; d) remedial flexibility and
ongoing judicial participation and supervision.
A. Access and Standing

Public interest litigation in India is channeled through two ave-
nues. If the complaint is of a 'legal wrong' the appropriate forum is
the High Court of the state under Article 226 of the Constitution. If
a 'fundamental right' is alleged to have been violated the remedy
may be sought from the High Court or directly from the Supreme
Court under Article 32.20 The constitutional guarantee of direct ac-
cess itself ensures that less advantaged individuals and groups might
more realistically consider asserting their interests through the
courts. And by liberally interpreting these provisions the courts
have further sought to rebalance the scales of justice.
The traditional understanding of litigation requires that the par-
ticipants have some real interest to promote in order that 'truth' will
effectively be revealed through adversarial proceedings. In individu-
alist capitalist cultures, the notion of a 'real interest' historically has
emphasized property and other financial interests.21 The narrow ap-
proach to standing has been justified further by floodgate argu-
ments, the desire to exclude intermeddlers and the unwillingness or
inability of the courts to adjudicate on matters that are best left to
the discretion of policy makers, attorneys general, and other so-
called guardians of the public interest.
Anticipating later innovations, the Indian Supreme Court de-
clared in 1976 that: 'Where a wrong against community interest is
done, 'no locus standi' will not always be a plea to non-suit an inter-
ested public body chasing the wrong doer in court . .. Locus standi
has a larger ambit in current legal semantics than the accepted, indi-
vidualist jurisprudence of old.'22 Since that time the Indian ap-
proach to PIL has extended the rules of standing to the point that
20. 32(1) "The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights guaranteed by this Part is guaranteed."
21. There has been a gradual liberalization of the rules of standing in constitu-
tional litigation in Canada. See, Thorson v. A.G. Canada, [1975] 1 S.C.R. 138; Nova
Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; and Minister of Justice v. Bo-
rowski, [1981] 2 S.C.R. 575. This liberalization has been hastened by the advent of
the Charter, and there is some indication that it may be extended to non-constitu-
tional public interest litigation. See Minister of Finance of Canada v. Finlay (1987),
33 D.L.R. (4th) 321. By way of contrast, the approach to class actions remains re-
strictive. See Naken v. General Motors of Canada Ltd. (1984), 144 D.L.R. (3d) 385
(S.C.C.).
22. Maharaj Singh v. Uttar Pradesh, A.I.R. 1976 S.C. 2602, 2609.

they may be said to have ceased to present any real obstacle to the
public interest litigant. Public interest litigation has been initiated
by individuals on behalf of other individuals and groups, by academ-
ics, journalists and by many social action organizations.23 As
Krishna Iyer J. explained in Mumbai Kangar Sabhha v.
Abdulbhai 24
Test litigations, representative actions, pro bono publico and
like broadened forms of legal proceedings are in keeping
with the current accent on justice to the common man and
a necessary disincentive to those who wish to bypass the
real issues on the merits by suspect reliance on peripheral,
procedural shortcomings . . . Public interest is promoted by
a spacious construction of locus standi in our socio-eco-
nomic circumstances and conceptual latitudinarianism per-
mits taking liberties with individualization of the right to
invoke the higher courts where the remedy is shared by a
considerable number, particularly when they are weaker.
In S.P. Gupta v. Union of India25 Bhagwati C.J. (as he then was)
was even more explicit:
Where a legal wrong or a legal injury is caused to a person
or to a determinate class of persons ... and such a person or
determinate class of persons is by reason of poverty, help-
lessness or disability or socially or economically disadvan-
taged position, unable to approach the court for relief, any
member of the public can maintain an application for ap-
propriate direction ...
B. Procedural Flexibility
The Indian judiciary has shown a willingness to alter the rules
of the game where necessary. Actions may be commenced not only
by way of formal petition, but also by way of letters addressed to the
court or a judge who may choose to treat it as a petition. There are
reports of actions begun by postcard, and even of one judge con-
verting a letter to the editor in a newspaper into a PIL writ.26
23. For an account of some of the political and social action organizations in In-
dia, see Shah, "Grass-Roots Mobilization," in Atul Kohli (ed.), India's Democracy
(1988); Dhavan, "Managing Legal Activism: Reflections on India's Legal Aid Pro-
gram," 15 Anglo-American L. Rev. 281 (1986).
24. A.I.R. 1976 S.C. 1455.
25. (1982) 2 S.C.R. 365, 520, A.I.R. 1982 S.C. 149, 189; see also People's Union for
Democratic Rights, supra n. 10.
26. Sri Krishna Agrawala, Public Interest Litigation in India 20 (Indian Law In-
stitute, 1986). Special Civil Application no. 2785/79, High Court of Gujarat; noted in
Menon, "Public Interest Litigation: A Major Breakthrough in the Delivery of Social
Justice," 9 J. Bar Council India 150 (1982). In Mukesh Advani v. State of Madhya

Judges have been known to invite and encourage public interest

actions.
Legal aid has been established as a fundamental right in crimi-
nal cases and in others the courts will often waive fees, award costs
and provide other forms of litigation assistance to public interest ad-
vocates.27 The court frequently appoints commissions of enquiry or
socio-legal committees to investigate and collect the necessary facts,
thus relieving the petitioner of the financial burden of proof.28
These commissions not only investigate the facts, but may also be di-
rected to recommend appropriate remedies. The court will often or-
der that they receive expenses and an honorarium from the
defendant.
Just as the court has sought to enhance access, so has it sought
to increase impact. So, for example, where there are a wide variety
of offenders, the court may choose to treat a particular case as a rep-
resentative action and issue orders binding on the entire class. In
one case concerning massive pollution of the river Ganga, the court
published notices in the newspaper drawing the litigation to the at-
tention of all concerned industries and municipal authorities inviting
them to enter an appearance.29 The final order, closing a large
number of industries and prohibiting the discharge of untreated ef-
fluent, was directed to scores of enterprises ex parte.
All such procedural innovations have been contested by defend-
ants on the grounds that they violate traditional canons of proce-
dure. The use of socio-legal commissions, for example, allows
evidence to be collected ex parte, immune from cross examination.
To such objections the former Chief Justice has responded: "The
constitution-makers deliberately did not lay down any particular
forms of proceedings for enforcement of fundamental rights nor did
they stipulate that such proceedings should conform to any rigid pat-
tern or straight-jacket formula."30 Absent some way of rebalancing
Pradesh, A.I.R. 1985 S.C. 1368, the court accepted a clipping of a newspaper story
about bonded labor as the basis for a PIL petition.
27. See, for example, R.L. and E., Kendra, supra n. 14, and MC. Mehta, supra n.
21, wherein the court ordered the State to pay rs. 10,000 remuneration to the in-
volved public interest advocates in addition to costs.
28. See, for example, Bandhua Mukti Morcha, supra n. 10 (conditions of labor);
R.L. and E., Kendra v. State of Uttar Pradesh, supra n. 14 (environmental litigation).
In the recent case of Wangla v. Union of India (1988) 1 Scale 118, the court appointed
an independent committee to examine the quality of butter imported soon after the
Chernobyl nuclear incident. In Sunil Batra v. Delhi Administration, supra n. 9, the
judges themselves visited a prison to assess its conditions.
29. M.C. Mehta v. Union of India (1987) 4 S.C.C. 463, (1987) 2 SCALE 611. The
court based its authority to do so on Order 1, Rule 8 of the Code of Civil Procedure.
30. Bandhua Mukti, supra n. 10, AIR, 814, S.C.C., 186. The Court did, of course,
suggest that the evidence and reports would be made available to all affected parties
and that they would have an opportunity to dispute the facts.

the resources of litigants, fundamental rights will remain but a

"teasing illusion" for the poor and disadvantaged:
We have therefore to abandon the laissez faire approach in
the judicial process . . . and forge new tools, devise new
methods and adopt new strategies for the purpose of mak-
ing fundamental rights meaningful for the large masses of
people.3'
C. Creative Adjudication and the Elaboration of Rights

The liberal understanding of rights as negative entitlements
against the state places the so-called 'private sphere' beyond the
reach of the courts. The idea that rights are individual "trumps"32
against collective goals and decisions limits the potential for requir-
ing positive action even of public authorities. Even where govern-
mental mismanagement of existing welfare legislation is at issue,
notions of the separation of powers and the distinction between leg-
islation and adjudication tend towards a low degree of judicial in-
volvement. To what extent have Indian courts been able to
transcend these limiting conceptions in PIL matters?
The fundamental rights of Indian citizens are specified in Arti-
cles 12-35 of the Indian Constitution. Article 21 declares that 'No
person shall be deprived of his life or personal liberty except accord-
ing to procedure established by law'. The earliest understanding of
this provision was a narrow procedural one: that the state had to
demonstrate only that the interference with the individual accorded
with the procedure laid down by properly enacted law.33 Moreover,
inconvenient Supreme Court decisions on the constitutionality of
state action were simply overturned by amending the constitution
until the 'basic structure' of the constitution was declared
unalterable.34
It was not until 1978 that the Supreme Court breathed substan-
tive life into Article 21 by subjecting state action interfering with
life or liberty to a test of reasonableness; requiring not only that the
procedures be authorized by law, but that they are "right, just and
31. Banduha, supra n. 10, A.I.R., 815, S.C.C., 189.

32. See, for example, Dworkin, supra n. 5.
33. A.K Gopalan, A.I.R. 1950 S.C. 27. See also the Emergency detention cases,
including, A.D.M. Jabalpur v. Shiv Kant Shukla, (1976) 2 S.C.C. 521.
34. The Supreme Court first enunciated a doctrine that fundamental rights were
unimpeachable: see Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643. This no-
tion was overruled and replaced with the theory of the 'basic structure' in Kesava-
nanda Bharati v. State of Kerela, A.I.R. 1973 S.C. 1461. The notion that the
constitution has an unalterable basic structure remains a highly problematic and
controversial element of Indian constitutional law. See Mahabir Prashad Jain, In-
dian Constitutional Law 876-895 (1987).

fair."35 This transformation paved the way for a substantive reinter-

pretation of constitutional and legal guarantees and positive judicial
intervention.
The former Chief Justice of the Supreme Court, writing in both
the popular press and the academic journals, made quite clear his re-
jection of the "bureaucratic tradition" of mechanical and rule-bound
adjudication.36 He suggested that positivism is a myth, "deliberately
constructed to insulate judges against vulnerability to public criti-
cism, and to preserve their image of neutrality . . . It also helps
judges to escape accountability for what they decide, because they
can always plead helplessness."37 In interpreting the Constitution,
the Supreme Court is neither bound by doctrines of literal meaning
or original intent, nor constrained to read into it only formal rights
and liberties. Instead, the text can be read as one which is "vibrant
with a socio-economic ideology geared to the goal of social justice"
and can be infused with principles that transcend mere formal
equality, and transform legal rights into positive social entitlements.
The judges in India have asked themselves the question:
can judges really escape addressing themselves to substan-
tial questions of social justice? Can they . . . simply follow
the legal text when they are aware that their actions will
perpetuate inequality and injustice? Can they restrict their
inquiry into law and life within the narrow confines of a
narrowly defined rule of law?38
Most constitutionally-based public interest litigation in India is
aimed not at challenging the validity of legislative measures, but
rather at enforcing existing laws and forcing public agencies to take
steps to enhance the welfare of the citizens. As the Supreme Court
declared in one case (concerning the displacement of slum dwellers
in Bombay), positive action is required "if the theory of equal pro-
tection of laws has to take its place in the struggle for equality...
In these matters, the demand is not so much for less Gov-
ernmental interference as for positive Governmental action
to provide equal treatment to the neglected segments of so-
ciety. The profound rhetoric of socialism must be trans-
35. Maneka Ghandi v. Union of India, (1978) 2 S.C.R. 621, A.I.R. 1978 S.C. 597.
This was a particularly dramatic achievement given that Art. 21 contains no
equivalent of a 'due process' requirement. For a detailed account of the place of due
process notions in the Indian constitution see, P.K. Tripathi, Perspectives on the
American Constitutional Influence on the Constitution of India, in Lawrence Beer
(ed.), Constitutionalism in Asia 59 (1979).
36. Bhagwati, "Bureaucrats? Phonographers? Creators?," The Times of India,
21-23 September 1986. Reproduced and discussed in Agarwala, "The Legal Philoso-
phy of P.N. Bhagwati," 14 Indian Bar Rev. 136 (1987).
37. Bhagwati, "Judicial Activism," supra n. 19 at 562.
38. Bhagwati, "Bureaucrats," supra n. 36.

lated into practice ... 39

Through an expansive reading of fundamental rights, informed by a
commitment to the (non-enforceable) social welfare objectives of the
Directive Principles, the courts have sought to read substance into
otherwise formal guarantees.40
An account of the substantive content of India's constitutional
jurisprudence is beyond the scope of this survey. A few examples,
however, will illustrate this tendency. In Olga Tellis, the court af-
firmed that 'the sweep of the right to life contained in Article 21 is
wide and far reaching' and includes the right to a livelihood.41 In
Francis Coralie Mullin, the court stated that
the right to life includes the right to life with human dig-
nity and all that goes along with it and ... must in any view
of the matter, include the right to the basic necessities of
life and also the right to carry on such functions and activi-
ties as constitute the bare minimum expression of the
human self.42
In Bandhua Mukti Morcha, Article 21 was said to include the right
to be "free from exploitation" and
at the least, therefore, it must include protection of the
39. Olga Tellis, supra n. 13, S.C.C., 587, A.I.R., 203.

40. Art. 37 states that the provisions contained in Part IV are 'not enforceable by
any court, but the principles therein laid down are fundamental in the governance of
the country.' Though the Directive Principles are not enforceable, the courts con-
sistently use them to interpret enforceable fundamental rights (to the extent of
reading them into fundamental rights), to ground their assumption of jurisdiction
over 'regulatory' matters, and to support the remedial strategies they adopt. The re-
liance on Directive Principles is particularly apparent in legal aid, prison and envi-
ronmental litigation. The relevant Directive Principles are 39-A (state to provide
free legal aid) and 48-A (environmental protection). In Hussainara Khatoon, supra
n. 11, the court relied on Art. 39-A to support its finding that legal aid was a funda-
mental right under Art. 21 and suggested, even in the absence of legislation, that if
legal aid was not provided by the state criminal trials might be void: 'This constitu-
tional obligation cannot wait any longer for its fulfillment . . . no state Government
can possibly have any alibi for not carrying out this command of the Constitution'
(at 1381). For the use of the Directive Principles in environmental litigation, see
M.C. Mehta v. Union of India (1987) 4 S.C.C. 463, (1987) 2 SCALE 611, continued in
(1988) 1 SCALE 54 (pollution of the river Ganga); Sachidanand Pandey v. State of
West Bengal (1987) 2 S.C.J. 70 (reliance on Art. 48-A to review municipal decision to
locate hotel in Calcutta zoological garden).
41. Supra n. 13, S.C.C., 572, A.I.R., 193. This case concerned the eviction of pave-
ment and slum dwellers from the streets in Bombay. The 'right' established may
have been somewhat hollow since the court held in the end that the law authorizing
their eviction was reasonable if read down to provide for a hearing. Some protection
was provided. The court ordered that established communities could not be removed
where they did not interfere with the public way unless the land was needed for a
proper public purpose, that others could not be removed until after the monsoon,
and that alternate accommodation should be found (though this was not a
precondition).
42. Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 2
S.C.R. 516, 529, A.I.R. 1981 S.C. 746, 753.

health and strength of workers, men and women, and of the

tender age of children against abuse, opportunities and fa-
cilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just
and humane conditions of work and maternity relief. These
are the minimum requirements which must exist in order
to enable a person to live with human dignity.43
In cases dealing with the treatment of prisoners awaiting trial,
the court has found support in the Constitution for orders requiring
the state to take active steps to ensure effective legal aid. In one
such case it ordered that assistance be funded by the state, that in-
formation on prisoners be provided immediately to Legal Aid Com-
mittees, that prisoners be educated about their legal rights, and that
compliance be monitored by surprise visits to the jail by a local
judge.44 The court reasoned that, absent positive measures, prison-
ers would be priced out of their rights.45
In MC. Mehta v. Union of India,46 the Supreme Court accepted
that environmental pollution and industrial hazards were not only
potential civil torts, but also violations of fundamental rights,
redressable directly by the Supreme Court through a public interest
petition.47 It took the opportunity in this case to forge a doctrine of
absolute liability with respect to hazardous operations, unrestricted
by the traditional qualifications and exceptions that have grown
about the common law rule in Rylands v. Fletcher.48 The Court rea-
soned that injuries to workers and others caused even by necessary
industries are part of the social cost of development and should not
be borne by the victims.
As one observer has concluded, through their interpretation of
Article 21 the courts have sought to convert formal guarantees into
positive human rights. "By an affirmative action the courts are try-
ing to force the government to create favourable conditions for the
effective realization of the new individual, collective, diffuse rights.49
43. Supra n. 10, S.C.C., 183, A.I.R., 811-812.

44. Sheela Barse, supra n. 12.
45. Id. at 380.
46. A.I.R. 1987 S.C. 1086. The Court declined to determine whether or not the
defendant in this case was sufficiently under government control to be an 'authority'
and therefore susceptible to constitutional control.
47. "The infringement of the right must be gross and patent ... and either such
infringement should be on a large scale affecting the fundamental rights of a large
number of persons or it should appear unjust or unduly harsh or oppressive on ac-
count of their poverty or disability or socially or economically disadvantaged position
to require such persons . . to initiate and pursue action in the civil Courts." Id. at
1091.
48. (1868) L.R. 3 H.L. 330.
49. Parmand Singh, "Judicial Socialism and Promises of Liberation: Myth and
Truth," 28 J. Indian L. Instit. 336 (1986).

If left unqualified, this is an overstatement. While interpreta-

tions of fundamental rights may be informed by a commitment to
the welfare objectives contained in the Directive Principles, these
are specifically declared to be non-justiciable. And while the court
may attempt to improve the administration of various welfare laws
(in some cases almost rewriting them) it has said consistently that it
cannot force the state to enact legislation to enhance fundamental
rights or to pursue the Directive Principles.50 The true measure of
judicial activism in India, therefore, is found less in the rhetoric of
rights definition than in the remedial strategies deployed and actual
outcomes in PIL cases.
D. Remedial Flexibility
The usual understanding of judicial remedies requires that the
rights of the parties be determined with finality and that the court
avoid prolonged or multiple suits and, at all costs, resist involving it-
self in any ongoing supervision of the matter. The institutional limi-
tations of courts and the doctrine of the separation of powers are
thought to exclude the judiciary from interfering with the operation
of the administration and to prohibit second-guessing discretionary
decisions requiring the delicate balancing of material and policy fac-
tors. In the name of efficiency, the courts will often require that the
applicant exhaust all other forms of redress before seeking a judicial
remedy.
In this area too, the Indian courts have demonstrated an ability
to press against the boundaries of the traditional understanding. Ar-
ticle 31(2) of the Constitution grants to the court the usual remedies
of habeas corpus, mandamus, prohibition, quo warranto and certio-
rari. But the courts have not restricted their remedial power to
these traditional orders and have insisted on a flexible interpreta-
tion of their inherent power to do justice.51
In cases of personal injuries52 and unlawful confinement53 they
have refused to limit the victim to the usual civil process. Petitions
are allowed directly to the Supreme Court under article 31; and
damages may be awarded to compensate the victim and deter the
wrongdoer. Perhaps more importantly, the courts have shown a
50. Bandhua Mukti Morcha, supra n. 12; Peoples Union for Democratic Rights v.
Ministry of Home Affairs, A.I.R. 1985 268; Olga Tellis, supra n. 13; State of Himchal
Pradesh v. A Parent of a Student of Medical College, Simla, A.I.R. 1985 S.C. 910.
The Supreme Court has, however, ruled that where a fundamental right applies
against private action as well as government, the government is constitutionally obli-
gated to take steps to enforce that right. See People's Union for Democratic Rights
v. Union of India (the Asiad Worker's Case), A.I.R. 1982 S.C. 1473.
51. Bandhua Mukti Morcha, supra n. 12.
52. M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 1086.
53. Rudal Shah, A.I.R. 1983 S.C. 1086.

willingness to experiment with remedial strategies that require con-

tinuous supervision and that appear significantly to shift the line be-
tween adjudication and administration. Just as the court will
appoint socio-legal commissions to gather facts, so will it create
agencies to suggest appropriate remedies and to monitor compliance.
The final orders in PIL matters are often detailed, specific and
intrusive.
By way of example, in environmental litigation the court has
shown itself willing to assume wide powers that might otherwise be
left to other rule-making authorities and regulatory agencies. In the
Shiriam Fertilizer case54 the court permitted a chemical plant to re-
open after a gas leak only upon satisfying a set of stringent condi-
tions. On the basis of recommendations of four separate court-
appointed technical teams the court ordered specific technical, safety
and training improvements. It required the allocation of trained
staff to defined safety functions. To monitor the plant the court set
up an independent committee to visit the plant every two weeks,
and also ordered the government inspector to make surprise visits
once a week. In addition, noting the increasing frequency of envi-
ronmental litigation, and the technical difficulties which the court
experienced in acquiring competent independent technical informa-
tion and advice, it 'suggested' that the government establish an Eco-
logical Sciences Resource Group to assist the court. The court also
required the company and its managers to deposit security to guar-
antee compensation to any who might be injured as a result of the
enterprise's activity.
Similarly, in the Bonded Labour Case55 the court instructed lo-
cal officials to identify oppressed workers, and to effect their release
and physical economic and psychological rehabilitation. To this end
the court directed the authorities to accept the assistance of social
action groups, to carry out surprise checks on local quarries, to set
up labour camps to educate workers about their legal rights, and to
ensure a pollution-free environment with adequate sanitary, medical
and legal facilities. In a case dealing with the conditions in chil-
dren's homes, the court ordered the public broadcasting authorities
54. M.C. Mehta v. Union of India, (1986) 2 S.C.C. 176, 1987 A.I.R. S.C. 965; condi-
tions modified (1986) 2 S.C.C. 325, 1987 A.I.R. S.C. 982. See also, M.C. Mehta v.
Union of India, (1988) 1 SCALE 54, concerning the pollution of the river Ganga. In
this case the court ordered the public authorities to complete proposed work on sew-
age treatment in a timely fashion, to remove dairies from the proximity of the river
or provide facilities for waste removal and, to refuse new industrial licences in the
absence of proof of adequate waste management facilities. Also, relying on Directive
Principle 51-A(g) (specifying the duty of government to educate about pollution) it
ordered that schools would teach environmental awareness one hour per week and
that the central government would have texts written and distributed free of cost.
55. Bandhua Mukti Morcha, supra n. 12.

to provide publicity for the effort to rehabilitate destitute children.56
III. PROBLEMS, CRITICS AND THEMES

Expectable charges of judicial legislation, violation of separation
of powers, encroachment on administration, and judicial despotism
all have been levelled at the Indian judiciary. This penultimate sec-
tion examines some of these charges, attempts to identify real
problems, and suggests themes for further development.
A. Procedure and Practical Difficulties

A survey of the literature has failed to turn up anyone with the
temerity to suggest that that the efforts to provide procedural ad-
vantages to the poor violate the canons of equality before the law.57
However, the non-adversarial nature of the proceedings is a matter
of concern to many. Unfounded allegations may be made that can-
not be subjected to rigorous tests of proof; defendants may not know
the full case against them; and over-extensive reliance on socio-legal
commissions of enquiry may give the court a partial and possibly bi-
ased view of the facts. These concerns are, perhaps, exaggerated.
The facts upon which the courts rely are made available to the con-
cerned parties and an opportunity is given to them to respond. Affi-
davits may be challenged, additional reports commissioned and new
evidence entered.
Both the manner in which litigation may be initiated and the ac-
tivism of the judiciary in prosecuting such cases raise the spectre
that litigants are shopping for particular judges and that judges are
shopping for particular issues and causes. Increased formalization,
however, would block access to less sophisticated petitioners. One
might also observe that while the appearance of neutrality may play
an important legitimating function, any judge's understanding and
interpretation of law will inevitably be colored by his or her political
commitments. Judge shopping is certainly not an unknown phe-
nomenon in other countries, and the control of the docket by the
Chief Justice of any court at least makes possible the distribution of
case assignments according to political color. The initiation of litiga-
tion is only one rather insignificant opportunity for a judge to bring
political 'bias' to bear on a case.
The expansive approach to standing puts pressure on the court
to develop theories of justiciability by which issues that are unsuita-
ble to resolution by litigation can be winnowed out. This suggests a
need for further empirical and theoretical information on the insti-
56. Sheela Barse (II), (1986) 3 S.C.C.
57. Though some come close. See, for example, H.M. Seervai, Constitutional
Law of India 318 (3rd ed., 1986).

tutional capacity of the courts. Perhaps of more immediate conse-

quence, the relaxed test of standing and the expedited fashion in
which cases can be brought in public interest matters put enormous
strains on already extremely scarce judicial resources.58 Some High
Courts are reported to receive 50 to 60 public interest letters per
day. In the fifteen months from 1 January 1987 to 31 March 1988,
the Supreme Court received 23,772 letters.59
Permanent PIL cells have now been established at some courts
to act as an initial filter for applications. These enable judges to pass
communications through a screening process60 and from there on to
the Chief Justice for assignment in the ordinary way. Resources
permitting, these bodies, along with the various legal aid organiza-
tions, might also serve a more active investigatory role. The PIL
cells cull through the letters, winnowing out frivolous and inappro-
priate matters and prepare files for the Chief Justice.61 Neverthe-
less, the problem of backlogs and delays remains a serious concern
and appears to underlie a recent retrenchment in PIL matters. As
Khalid J. said in a recent case, PIL is now a firmly established part
of Indian law, but "one is led to believe that it poses a threat to
courts and public alike. Such cases are now filed without any rhyme
or reason."62 He expressed fear that the courts were becoming
swamped with PIL matters and that other areas of judicial operation
were suffering. Calling for clear guidelines, he suggested that PIL
might be limited to cases of 'gross violations' where the conscience
of the court was shocked. Several months later, as if to confirm the
reversing tide, the court dismissed an Article 32 petition (though not
strictly a PIL matter) on the grounds that the Supreme Court was
stretched beyond capacity and the High Court could provide the ap-
propriate remedy. The Court said, "even if no new case is filed in
this Court hereafter, with the present strength of judges it may take
more than 15 years to dispose of all the pending cases."63
58. By Canadian and American standards, Indian courts are dramatically under-
staffed and poorly equipped. For an account of some of the problems, see Rajeev
Dhavan, Litigation Explosion in India (1985).
59. Of these, 110 were automatically posted as writ petitions in the Supreme
Court. 938 were referred to the Supreme Court Legal Aid Committee, and 5,857 to
various state Legal Aid and Advice boards for action. 4,745 were referred directly to
various government departments for direct action, and the remaining 10,746 were
either lodged or otherwise disposed of. Figures provided by the PIL cell, Supreme
Court of India, New Delhi, 15 April 1988.
60. The Chief Justice issues general guidelines to the cells which broadly catego-
rize classes of complaints and sets down procedures for their disposal.
61. Informally, the workers at these cells estimate that they receive 60-65 letters
per day. While the Chief Justice has provided broad guidelines, there is obviously a
great deal of discretion involved in assessing these letters.
62. Sachinand Pandey v. State of West Bengal, (1987) 2 S.C.J. 70, 112.
63. P.N. Kumar v. Municipal Corp. of Delhi, (1987) 4 S.C.C. 609, 610. One consti-
tutional scholar has pointed out that the High Courts are equally burdened and has

B. Legitimacy: The Politics of Judicial Activism

The dominant understanding of the judicial function in the com-
mon law world is that it can be rendered compatible with liberal
democratic principles only if adjudication remains distinct from leg-
islation. Just as it is the function of the judiciary to uphold the law,
so is its power limited by doctrines of precedent, notions of popular
sovereignty, and the separation of powers.
It should come as no surprise, then, that some of the fiercest
criticism of judicial innovation in public interest litigation has drawn
on these traditional conceptions of the judicial role. The court has
been charged not only with exceeding its institutional capacity, but
with reversing constitutional priorities, usurping both legislative and
administrative functions, violating the rule of law, riding roughshod
over traditional rights and succumbing to the corrupting temptations
of power. Such criticisms are ordinarily couched in the language of
legitimacy.
The question of legitimacy is a highly problematic one. To sug-
gest that the way in which an institution functions is illegitimate
may be a way of saying that it is deviating from preferred practices
in a way that is inconsistent with the theory of institutional rela-
tions underlying the Constitution. Alternatively, it may be to make
a statement of fact that for some reason the defacto authority of the
institution is in jeopardy. The former case requires an elaboration
and defense of the preferred theory, the latter, empirical evidence
regarding popular support and compliance. The two issues can
never be entirely separated, though there is research to indicate that
popular support (or at least compliance) even in established liberal
democracies, is not necessarily based upon (indeed may exist in spite
of) the dominant ideology or best available theory of the
Constitution.64
The power struggle between the courts and the legislature is as
old as independent India; no one institution is the unequivocal his-
torical champion of the poor and oppressed. Judges are drawn from
the elite and propertied classes in Indian society65 and have demon-
strated their willingness to deploy the Constitution to serve the in-
terests of those classes.66 The battle between the courts and
argued that this decision amounts to a constitutional amendment of Article 32. He

concludes that this case represents the lowest point in the Supreme Court's recent
history. Seervai, supra n. 37 at x-xi.
64. See Abercrombie & Turner, "The Dominant Ideology Thesis," and Mann,
"The Social Cohesion of Liberal Democracy," in Anthony Giddens & David Held
(eds.), Classes, Power and Conflict (1982).
65. See Moin Shakir, State and Politics in Contemporary India 34-38 (1986). See
also Richard Park & Bruce Mesquita, India's Political System 42 (2d ed., 1979).
66. See M. Shakir, supra at 76-78.

legislatures over land reform began virtually on day one of the Con-
stitution,67 and since that time the courts have vigorously scruti-
nized redistributive measures.68 In Golak Nath,69 the Supreme
Court declared that fundamental rights, including the right to prop-
erty, were unamendable. In the early 1970s it protected the privi-
leges and pensions of princes70 from the government, and
invalidated bank nationalization legislation71-moves hardly likely
to engender the support of social activists. Indira Ghandi's substan-
tial victory in the election of 1971 was achieved on issues of eco-
nomic and social reform and was a popular rebuke to the courts.72
During the years leading up to the 1975-77 Emergency the
courts became increasingly subordinate to the executive and legisla-
ture.73 Their pro-property decisions were increasingly neutralized
by constitutional amendments;74 political appointments, transfers of
'uncommitted judges' to undesirable posts, and the practice of super-
session served to erode further the autonomy of judges.75 The
courts' failure to assert fundamental rights during the Emergency,
made their marginal position painfully clear to the Indian public,76
and the process culminated in the 42nd amendment to the Constitu-
tion (1977), which sought all but to eliminate the power of judicial
review.77
The new judicial activism may thus be understood as part of the
67. Re Bihar Land Reforms Act, 1951, A.I.R. 1951, Pat. 91.
68. For an analysis of the Supreme Court's chequered history in dealing with the
conflicts between redistributive legislation and constitutional property rights, see
Narain, "Judges and Distributive Justice," in Rajeev Dhavan & R. Sudarshan (eds.),
190 Judges and the Judicial Powers (1985). See also, Jain, supra n. 37 662-681.
69. Supra n. 34.
70. Madhay Rao Scindia v. Union of India, A.I.R. 1971 S.C. 350.
71. R.C. Cooper v. Union of India, A.I.R. 1970 S.C. 564.
72. P.K. Tripathi makes this suggestion in the context of his argument that judi-
cial activism has weakened Indian democracy. "Perspectives on American Constitu-
tional Influence on the Constitution of India," in Lawrence Beer, supra n. 35 at 96-
98.
73. R. Dhavan, supra n. 23 at 281-296.
74. By the time of the 1975 Emergency the constitution had already been
amended 41 times.
75. Supersession is the promotion of junior judges over their senior colleagues.
The government also transferred large numbers of anti-government High Court
judges to hardship posts. Both of these moves were seen as attacks on the indepen-
dence of the judiciary. For a brief account of these developments see, Richard Nyrop
(ed.), India: A Country Study 396-400 (1985). See also M. Shakir, supra n. 65 at 78.
76. See, for example, A.D.M. Jabalpur v. Shiv Kant Shukla A.I.R. 1976 S.C. 1207.
For an account of the Emergency cases see "Derrett, Emergency and preventive de-
tention in India: A question of the Courts proper function," in Peter Robb and
David Taylor (eds.), Rule, Protest and Identity: Aspects of Modern South Asia
(1978); and H.M. Seervai, The Energy Safeguards of the Habeas Corpus Case (1979).
77. Park & Mesquita, supra n. 63 at 71-72. The 42nd amendment which sought
among other things to override the 'basic structure' doctrine, has since been tem-
pered by the 43rd and 44th amendments, enacted by the post-emergency Janata
government.

courts' effort to retrieve a degree of legitimacy following the Emer-

gency.78 The courts had been politicized and marginalized. PIL rep-
resents a strategic reversal of previous judicial priorities in order to
win popular support and achieve a more prominent role in Indian
society. The question is whether there is room in the Indian polit-
ical system for such an enterprise.
Indian political institutions are dominated by competing elite
groups (capitalists, wealthy farmers, professional classes).79 Public
institutions, including the bureaucracy, social agencies and the po-
lice80 have, through patronage, political pressure and corruption, be-
come partly privatized by these elites, whose interests are often
adverse to social reform. The public sector has become a source of
wealth and power to the dominant groups and those resources that
are left to improve the lot of the poor are often expended on
purchasing political allegiances.8' Promises by political leaders to
'end poverty' and fulfill the socialist aspirations of the Constitution
contrast too obviously with a low level of economic development and
increasing capitalist accumulation.82 Liberal ideals of equality clash
with traditional social arrangements and the most well-intentioned
formal laws run into the impasse posed by relatively autonomous
structures of traditional power, authority and social organization.83
The experience of the Emergency and the increasing centralization
of government power under the domination of a single party threat-
ens to engender a crisis of confidence in democratic institutions.84
It is in response to these factors that in the last two decades so-
cial action groups have begun mobilizing outside the mainstream of
Indian politics and have sought other arenas of social struggle. And
it is in this context that the courts have risked asserting for them-
selves a more high profile role in India's socio-political life.
The judges have been accused of illegitimately 'politicizing' con-
stitutional adjudication.85 This criticism assumes the coherence of a
78. See Jain, supra n. 34 582; Baxi, "Taking Suffering Seriously: Social Action
Litigation in the Supreme Court of India," in Dhavan and Sudarshan (eds.), supra n.
68 at 290. This argument is developed more fully in Upendra Baxi, The Supreme
Court and Politics (1980).
79. Park & Mesquita, supra n. 63 at 42; Kohli, "Interpreting India's Democracy,"
and Bardhan, "Dominant Proprietary Classes and India's Democracy," both in Atul
Kholi (ed.), India's Democracy (1988).
80. On police lawlessness see M. Shakir supra n. 63 at 80-93; and Hart, "Political
Leadership in India: Dimensions and Limits," in Kohli (ed.), supra n. 79; Robert L.
Hardgrave, India Under Pressure 54-57 (1984).
81. Bardhan, supra n. 79, at 218-219.
82. Hart, "Political Leadership in India," in Kohli (ed.), supra n. 79 at 32-33.
83. Henry Hart gives the example of land reform. The constitution may be
amended to eliminate formal opposition to reforms, but 'the small-town courts
would still halt the redistribution for months or years. .' Id. at 34.
84. Bardhan, supra n. 79, at 222-4.
85. See, for example, Seervai, supra n. 57.

distinction between legislation and adjudication, and the possibility

of neutral constitutional interpretation. Without wishing to enter
the debate, it must be said that the activist members of the judiciary
are certainly not alone when they suggest that the issue is not
whether, but what type of, political values should enter into
adjudication.
The practice of reading into the enforceable fundamental rights
the aspirations of the non-justiciable welfare goals enshrined in the
Directive Principles is a matter of some debate. Whether the two
categories are meant to be harmonious or to act as a check upon one
another is an important question of Indian constitutional law.86 The
willingness of the courts to read welfare goals into their interpreta-
tion of fundamental rights has prompted at least one commentator
to argue that the 'Hegelian Marxist socialism' of the activist judges
misunderstands the nature of the Indian polity.87 Relying on Rawls
and Dworkin,88 he suggests that the best reading of the Constitution
must be based upon the express priority of individual liberty over
welfare rights, and that to infuse legal rights with the teleological
objectives of the Directive Principles is to re-write the Constitution.
Whether the Indian constitution bears such a 'Rawlsian inter-
pretation' is beyond the scope of this survey. However, a few tenta-
tive observations might be offered. The Rawlsian interpretation
depends for its appeal upon the view that individuals should, so far
as possible, be empowered to determine their life prospects. In the
context of the Indian polity, the recommendation to judges to define
rights in contrast to welfare, and to prefer the former over the latter
when they conflict, seems simply and strangely to endorse the mar-
ket as a mechanism of social choice.
Second, charges of judicial socialism, while raising any number
of interesting theoretical points, are simply exaggerated. The courts
are fully aware of their minimal ability to redistribute resources and
power to the less advantaged. While they may on occasion import
the values of the Directive Principles into their interpretation of
fundamental rights, they are aware that they cannot significantly re-
allocate public resources. The vast majority of cases go little further
than seeking to breathe life into existing constitutional guarantees
86. Jain, supra n. 34, at 737-750;Errabbi, "The Constitutional Harmony and Bal-
ance Between Fundamental Rights and Directive Principles of State Policy: Nehru's
Perception," 14 Indian Bar Rev. 151 (1987).
87. Agarwala, "The Legal Philosophy of P.N. Bhagwati," 14 Indian Bar Rev. 136
(1987). The author argues that because most of the positive welfare entitlements of
the citizen are couched as non-justiciable constitutional directives, they are of lesser
priority than the more familiar 'legal rights' contained in sections 12-35.
88. John Rawls, supra n. 5; Dworkin, supra n. 5.

and enforcing existing laws and regulations. Perhaps it does not

need to be said that in India this is itself a formidable enough task.
The most pervasive criticism is that the courts are usurping the
function of the administration, taking on the tasks of policy determi-
nation and resource allocation that are best left to the expertise and
discretion of other officials. As one critic has suggested,
India being a welfare state, legislation already exists on
most matters . . . If the Court states enforcing all such leg-
islation under the spacious plea that non-enforcement is vi-
olative of article 21, perhaps no state activity can be spared
from the purview of the Supreme Court as a PIL matter.
Its logical extension could mean the taking over of the total
administration of the country from the executive by the
Court.89
While phrased in somewhat alarmist terms this charge raises
several issues of serious concern. It suggests, first, that the courts
are ill-equipped to engage in broad reformist activities; second, that
such activities will undermine the popular support and political via-
bility of the courts; and finally, that the effort is ultimately ineffec-
tive and a waste of time and resources.
There can be little doubt that the Indian courts have penetrated
policy formulation and administrative operations to a much greater
extent-or at least in a more open fashion-than Western court-
watchers are used to seeing. The judiciary is, of course, aware of the
danger of taking on a policy role "to a degree characteristic of polit-
ical authority" and indeed, "running the risk of being mistaken for
one."90 However, the doctrine of separation of powers, while sug-
gesting good reasons why such lines must be drawn (judicial non-ac-
countability, institutional competence, etc.), does not of itself
indicate precisely where they should be placed. As one Supreme
Court judge said, when a citizen seeks vindication of a fundamental
right or Directive Principle the court cannot simply "shrug its shoul-
ders and say priorities are a matter of policy and so it is a matter for
the policy-making authority."91 Whenever a court is called upon to
scrutinize an official decision or operation it is immediately and in-
evitably engaged in both policy analysis and the political exercise of
determining its own jurisdiction. Principles of standing, jus-
ticiability, and judicial deference do not remove so much as disguise
89. Agrawala, supra n. 26 at 37.

90. Per Pathak J. in Banduha Mukti Morcha, supra n. 10, S.C.C., 232, A.I.R., 843.
91. Per Chinnappa Reddy J. in Sachidanand Pandey v. State of West Bengal
(1987) 2 S.C.J. 70, 82. The case involved a challenge to a decision to allot land to
build a large hotel in the Calcutta zoological garden. After an extensive review of
the evidence the court held that the decisionmakers were alive to the relevant eco-
logical concerns, that there was no mala fides, and that the decision would stand.

this dimension. Where the lines may be drawn is as much a matter

of institutional capacity, practical politics and popular support as of
constitutional theory.
Whether the courts have the capacity to carry out the kind of
policy analysis required in public interest matters turns on their
ability to collect and assess the necessary data and assign priorities
to sometimes conflicting public objectives. Whether the particular
orders of the court have interfered with administrative operations to
the detriment of other priorities and programs is an empirical ques-
tion which deserves investigation. As suggested above, there are few
PIL cases in which judicial activism can be said to overrule express
public priorities. Insofar as the orders in these cases are designed to
enforce official compliance with the rhetoric of public policy, how-
ever, they are on occasion inconvenient to politicians and
administrators.
The question of practical politics brings us once again to the
more general issue of political viability and popular support. The ef-
fectiveness of general and intrusive judicial remedies depends al-
most entirely upon good faith compliance efforts. In the absence of
such efforts many fear that there is little the court can do except
watch its own authority erode. As one Supreme Court Justice said
of the 'politicization' of the judiciary:
Since the court possesses the sanction neither of the sword
nor g the purse and that its strength lies basically in public
confidence and support, consequently the legitimacy of its
acts and decisions must remain beyond all doubt . . . In-
deed, both certainty of substance and certainty of direction
are indispensible requirements in the development of law,
and invest it with the credibility which commands public
confidence in its legitimacy.92
There is a recognized need to ensure that the remedies are clear and
feasible, to monitor and assess the extent of compliance; and also to
determine the degree to which PIL orders have actually contributed
to improving the lives of the disadvantaged.
Whether the popular legitimacy of the courts has been en-
hanced or diminished as a result of its PIL activism is another em-
pirical question that awaits systematic study. The informal evidence
is, however, instructive. There seems to be no doubt that the courts'
public profile has been raised considerably. The popular press, so-
cial action newsletters and magazines and scholarly literature are
replete with reports, by and large favorable, of PIL matters. The
sheer volume of PIL petitions attests to the demand for the new fo-
92. Bandhua Mukti Morcha, supra n. 10, S.C.C., 234, A.I.R., 844.

rum. One of the foremost observers of PIL has claimed that by

transcending received liberal notions of the judicial function courts
are retrieving a degree of popular moral support at the same time
that other social and political institutions are facing a legitimation
crisis. He suggests that the "transition from a traditional captured
agency with a low social visibility into a liberated agency with a high
socio-political visibility is a remarkable development."93 The princi-
ple of separation of powers and the distinction between legislation
and adjudication presuppose that the executive and legislature are
themselves vested with legitimacy and popular support. Where this
is not entirely the case, the assumption of a political role beyond
that traditionally ascribed to the judiciary may not undermine, but
indeed enhance its credibility and support.94
The final question is whether such claims are an over-enthusias-
tic response to the early experience of PIL; whether they underesti-
mate the nature of India's social problems and ignore the inherent
limitations of the judicial process. As noted above, there has been
some retrenchment, foreshadowing a more restricted and regulated
approach to PIL matters. Moreover, there is not as yet any signifi-
cant data on the actual impact of PIL on the lives of the groups that
it is supposed to serve.
C. Efficacy
To the foreign observer, one of the most striking aspects of the
Indian legal system is the extent to which formal legal arrange-
ments exist in almost metaphysical isolation from social reality. It is
hardly surprising, therefore, that while public interest litigation may
have secured a better life for some individuals, it has not ended
bonded labor nor found homes for the Bombay pavement dwellers.
Litigative strategies can never substantially redistribute wealth or
power, nor penetrate and affect the economic and cultural condi-
tions which define the reality of Indian life.
Critics and social activists alike question the utility of expending
scarce human and financial resources on litigative strategies. They
properly point out that the reach of the judiciary is limited, that ju-
93. Baxi, ". . . Suffering," supra n. 78 at 289. See also Bhagwati, supra n. 19 at
599: "a modern judiciary can no longer obtain social and political legitimacy without
making a substantial contribution to issues of social justice."
94. "On the broader political plane, the legal professions in India can be said to
have, to some extent, filled the void of an effective national-level political opposition
in India. A large number of questions, whose ordinary resolution belongs primarily
to political processes in a liberal democracy, have constantly been taken to courts
which, ineluctably emerged as important political actors." Baxi, "A Historical Evalu-
ation," Lex et Juris, Mar. 1987 at 6, 9. This argument is developed more fully in
Baxi, The Supreme Court and Politics (1980), and Courage, Craft and Contention:
The Indian Supreme Court in the Eighties (1985).

dicial activism "cannot be a substitute for executive's efficiency,"

and that social and economic change in a society "organized around
privilege, patronage and power, cannot be brought about just by a
few PIL actions, howsoever well-intentioned."95 As one PIL activist
suggested
For the downtrodden of the world, we secure their rights by
law, exactly as though they had the same privileged back-
ground as we, and then, outside the court room we leave
them to their separate ways. Ours is not, however, the uni-
verse which they inhabit. Their grim, hostile world, which
recedes while we are present, returns with a vengeance.
This is why our legal victories turn out to be both phyrric
and dangerous to the poor. There is real danger if legal ac-
tivists continue to interfere haphazardly, on a short-term,
case-wise basis with the lives of the downtrodden. It is time
we learn that it is not enough to expose the innumerable
and appalling social evils through the courts and the media.
We must link up with social activists who alone can provide
them with ground support.96
To admit the limitations of PIL is not necessarily to dismiss it.
Some have suggested that while PIL is not directly instrumental it
can be used to call attention to "the pathology of public and domi-
nant group power"97 and that successful results must be considered
merely as bargaining endowments in the struggle to improve the lot
of the oppressed.98 The value of these endowments depends entirely
upon the non-legal means by which information is disseminated,
groups are supported and educated, and pressure is brought to bear
upon the responsible authorities to comply. As the former Chief
Justice said:
We must always remember that social action litigation is a
necessary and valuable ally in the cause of the poor, but it
cannot be a substitute for organization of the poor, develop-
ment of community self-reliance and establishment of effec-
tive organizational structures through which the poor can
combat exploitation and injustice, protect and defend their
interests and secure their rights and entitlements.99
Once again, empirical data is required before one can conclu-
95. Agrawala, supra n. 26 at 45.

96. Dr. Vasudha Dhagamwar, in Agrawala, supra n. 28 (from Public Interest Lit-
igation: Courting Justice or Trouble? Sunday Observer, 30 Oct. 1983).
97. Bhagwati, supra n. 19 at 573.
98. Singh, supra n. 49.
99. Bhagwati, "Law Justice and the Underprivileged" (keynote address, National
Seminar on Unorganized Rural Labor), New Delhi, 4 Jan. 1984 (reproduced in
Agrawala, supra n. 26 at 46).

sively say whether the light is worth the candle. The experience of
both the social activists and the beneficiaries of PIL is no doubt a
contradictory one. For example, after a drawn out effort to improve
the practices prevailing in children's homes,'00 one prominent social
activist stated, "I shall not [again] enter the courts as a petitioner or
as a respondent . .. I have no respect for the courts." Of public in-
terest litigation she said, "Does it work for the commoners sans silk
gown? The thousands of children in jails throughout India testify to
the fact that it does not."'0' Four months later, the Supreme Court
again had occasion to decide a petition filed by this same individual.
This time she was more successful. The issue concerned the denial
of public access for journalists to prisons in order to assess condi-
tions and ensure the welfare of the detainees. The Court took note
of the fact that through public interest litigation and the interven-
tion of the courts, prison conditions had substantially improved over
the years. But the court also reasoned that, until the attitudes of ad-
ministrators changed, the ongoing efforts of social activists on the
ground remained the crucial link in ensuring the fundamental rights
of citizens.'02
IV. CONCLUSION
In the final analysis, the fate of PIL in India may therefore

hinge on the concrete experience and continued faith and effort of
social activists and their constituent groups; and, notwithstanding
some successes, this experience is a contradictory one. The Indian
legal system suffers exponentially from all the same defects as that
in the developed countries of the West.'03 Ordinary litigation is ex-
pensive and well beyond the means of disadvantaged groups in soci-
ety. Delays of Bleak House proportions are notorious. Stories of
corruption, bias, and political interference can frequently be found
in the national press. The Indian legal system was designed to fur-
ther the goals and policies of colonial control and exploitation, and
today a lively literature questions the extent to which it has
emerged from this role.'04 More recently, the bar and bench have
proved their willingness to serve the needs of modern corporate cap-
italism'05; they have extended to the powerful segments of society
constitutional guarantees which to many observers simply obstruct
100. Sheela Barse v. The Secretary, Children Aid Society, (1987) 1 S.C.J. 584.
101. Interview in Lex et Juris, May 1987 at 38.
102. Sheela Barse v. State of Maharasta (1987) 3 S.C.J. 543, (1987) 4 S.C.C. 373
(Judgment delivered 18 Sept. 1987).
103. For an account of some of the structural problems of the Indian legal system,
see Dhavan, supra n. 58.
104. Upendra Baxi, The Crisis of the Indian Legal System (1982).
105. See the discussion, supra at nn. 63-77.

socially progressive measures.'06

Judges, lawyers and politicians of the left, from which many
PIL activists are drawn, are vividly aware of their inheritance.
Many perceive law in straightforward Marxist terms: a system or-
ganized around formal individual rights and private property,
designed by and for the ruling class, to preserve the maldistribution
of wealth and power in society. As one judge of the Supreme Court
said even of the constitutional guarantees of equality and social wel-
fare: "It is obvious that the provision for socialism and the high-
ringing Directive Principles are a facade and that to the ruling
classes equality has never meant more than 'formal equality' and so-
cialism has never been more than a verbal mask."''07
Even the immediate future of PIL remains uncertain. While
PIL has been partly institutionalized it remains dependent on the
personal commitment of individual judges. Past experience has
shown that the judiciary can be contained. Simple non-compliance
can effectively derail judicial reforms and the ultimate power of
easy constitutional amendment allows inconvenient decisions to be
legislatively overruled.'08 Activist measures can be defused and con-
trolled by absorbing them within existing institutions of state and
redefining them in ways more compatible with the existing order.'09
Nevertheless, critical legal activists also believe that to the ex-
tent that law does have a degree of autonomy from the immediate
requirements of the political and economic elite it might be har-
nessed for the cause of the less advantaged."10 Enhanced access of
such groups to law, and increased support might give the formal
promises of law some, albeit, limited, value. By exploiting the lim-
ited autonomy of law, the courts become an arena of social struggle
wherein the stakes may be largely ideological and only incre-
mentally material. In this view, the function of social activism is to
106. Indeed, the Law, Commerce and Planning Minister, P.S. Shankar, was re-
cently prompted to describe the Supreme Court as 'a haven of anti-social elements,
smugglers, FERA violators, bride burners and hordes of reactionaries.' Speaking at
a seminar organized by the Bar Council of Andhra Pradesh, reported in Alive Janu-
ary (Second) 1988 at 11. These remarks earned him a contempt of court charge
which was ultimately dismissed, though the comments were said not be 'temperate
and proper.' (Indian Express, 17 March 1988).
107. Justice O.C. Reddy, "Socialism, Constitutionalism and Legal Aid Movement
in India," A.I.R. 1986, Journal 1, 7. Justice Reddy's view of legalism is equally appar-
ent in his remarks in Escorts Ltd. v. Union of India, A.I.R. 1986 S.C. 1371, 1375-76.
For a running critique of the "irresponsible," "undisciplined" "unbalanced" and fal-
lacious socio-political views of Justice Reddy and other activists, see Seervai, supra n.
57 at 272-320.
108. By 1984 the constitution had been amended 44 times. On the political uses of
constitutional amendment see Park & Mesquita, supra n. 65 at 76-77, 136.
109. Chavan, supra n. 23 at 281.
110. On the theme of limited autonomy, see Reddy, supra n. 107, and Krishna
Iyer, Judicial Justice 149-50 (1985).

'expose the false rhetoric of the State, exploit its contradictions, in-
cluding the contradictions enunciated by its conceptive ideologists,
and realign its social base along class lines rather than traditional
factions."" The crucial question remains whether this ideological
function will serve to expose and alter pathological social arrange-
ments, or simply paper over the abyss which separates formal legal
promises from Indian social reality.
111. Dhavan, supra n. 23 at 281, 292.


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Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?

Author(s): Jamie Cassels

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Judicial Activism and Public Interest Litigation in

JAMIE CASSELS is Associate Professor of Law, University of Victoria. I would like to

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forms of collective action which are necessary to redress inequality.6

II. JUDICIAL ACTIVISM

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Painfully aware of the limitations of legalism, the judiciary of

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is clearly informed by strong socio-political views and commitments.

A. Access and Standing

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Judges have been known to invite and encourage public interest

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the resources of litigants, fundamental rights will remain but a

C. Creative Adjudication and the Elaboration of Rights

31. Banduha, supra n. 10, A.I.R., 815, S.C.C., 189.

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fair."35 This transformation paved the way for a substantive reinter-

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lated into practice ... 39

39. Olga Tellis, supra n. 13, S.C.C., 587, A.I.R., 203.

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health and strength of workers, men and women, and of the

43. Supra n. 10, S.C.C., 183, A.I.R., 811-812.

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If left unqualified, this is an overstatement. While interpreta-

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willingness to experiment with remedial strategies that require con-

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to provide publicity for the effort to rehabilitate destitute children.56

III. PROBLEMS, CRITICS AND THEMES

A. Procedure and Practical Difficulties

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tutional capacity of the courts. Perhaps of more immediate conse-

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B. Legitimacy: The Politics of Judicial Activism

argued that this decision amounts to a constitutional amendment of Article 32. He

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courts' effort to retrieve a degree of legitimacy following the Emer-

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distinction between legislation and adjudication, and the possibility

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and enforcing existing laws and regulations. Perhaps it does not

89. Agrawala, supra n. 26 at 37.

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this dimension. Where the lines may be drawn is as much a matter

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rum. One of the foremost observers of PIL has claimed that by

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dicial activism "cannot be a substitute for executive's efficiency,"

95. Agrawala, supra n. 26 at 45.

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In the final analysis, the fate of PIL in India may therefore

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socially progressive measures.'06

This content downloaded from 128.193.164.203 on Tue, 11 Feb 2014 21:52:40 PM

111. Dhavan, supra n. 23 at 281, 292.

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