Guest post: Talk on Public Law Litigation In India by Dr Surya Deva

Talha Abdul Rahman, a recent graduate of Nalsar University of Law, Hyderabad, currently pursuing post graduate studies (BCL) at the University of Oxford as a Shell Centenary Chevening Scholar, reports on Dr. Surya Deva’s talk in Oxford on Public Interest Litigation in India. The presentation slides for the talk are available here. This blog has discussed the issue of PILs here, here and here. Talha’s previous guest post on this blog can be found here.

Civil Procedure Seminar Series for BCL/MJur students had first of its seminar today on “Public Law Litigation in India” by Dr Surya Deva, Assistant Professor, City University of Hong Kong. The primary audience of the seminar was students of Principles of Civil Procedure course lead by Prof. Adrian Zuckerman, but was attended by other students and fellows of University of Oxford. The seminar was partly based on Dr. Deva’s article titled “Public Interest Litigation in India: A Critical Review”.

The seminar began with the introduction of ‘public interest litigation’ (PIL) by outlining the factors that promoted its use as tool to do justice and that enhanced its popularity, and legitimacy of the system. He pointed out that its popularity is linked to the fact that it made justice accessible to poor Indians (while maintaining the impoverishment must not be construed only in economic terms), and made collective/diffused rights enforceable. It unfettered justice from procedural rules that proved as obstacles to access justice.

The second part of the seminar was focussed on tracing the evolution of PIL. The pioneers he pointed out, influenced by American jurisprudence, were Justice Bhagwati and Justice Krishna Iyer. He also summarily pointed out the distinction between public interest litigation and social action litigation as argued by Prof. Upendra Baxi. The former is ‘group’ based, and the latter is issue based (where focus is on getting the justice done) and thus the latter is actually the true nomenclature for PIL in India. He also made a brief reference to Prof. Julius Stone’s work in connection with using the law for social action. He further argued that as opposed to other jurisdictions, PIL in India finds itself deeply entrenched in the Constitutional provisions, and is therefore there to remain. Overall framework of the Constitution of India is conducive to development and invocation of PIL jurisdiction. He noted that the Supreme Court made suitable modifications to the scope and requirements under procedural rules relating to locus standi, filing procedures, cause of action, evidentiary problems and reliefs.

Curiously enough, through a graphic representation he pointed out how the Supreme Court over the years has changed the nature of PIL, and is increasingly addressing issues that concern middle-class Indian such as good governance, and dam construction. This, he juxtaposed with ‘First-phase’ of PIL in 1970s-80s where the Supreme Court was concerned with issues that were close to ‘poor Indians’. He also made a passing reference to “1949 Constitution” which had a provision, about which many do not know, that permitted enforcement of fundamental rights against private actors.

While these observations do have some force, it seems to me that it has been assumed that good-governance etc are issues that relate to middle class and have no relevance for poor Indians. It needs much more analysis. Further, the notion of ‘middle-class’ as being an identifiable class, distinct from ‘poor Indians’ is not entirely free from problems, especially when “poor” has to be construed also in non-economic terms. It is also arguable that rather than replacing issues that it dealt with, the Supreme Court began to expand it jurisdiction to take on board issues which were hitherto addressed with a hands-off policy. Also in attributing ‘class’ to exercise of jurisdiction over issues, one is obliterating the distinction that Dr. Baxi pointed out about Indian PIL – that it is issue based litigation.

He took the audience through a range of issues that the higher courts in India have dealt with under their PIL jurisdiction. Strong issues such as sexual harassment figured, but examples were dominated by rather risible selection of cases, such as PIL on “monkey menace”. It remained unclear that whether such examples were the rule or exception; as that would determine what role Indian courts have assigned to themselves, especially when audience is placed as an outsider in an international class-room setting. It could build a strong case for law reform by anecdote, against which an Australian academic (Prof. Camille Cameron) had cautioned in one of the earlier lectures in Civil Procedure in relation of class-actions.

He submitted that Indian Supreme Court is world’s most active court, may be rivaled only by Israeli Supreme Court, as it has deployed legitimate tools available to judiciary to claim powers that did not belong to it. He exemplified this by reference to judicial appointments, and development of ‘basic structure’.

The Good, the Bad and the Ugly

Dr. Deva pointed out that there has been much good that has been done by the public interest litigation, which he sees as a phenomenon. It revived the lost faith in the judiciary and thus its legitimacy. It was now increasingly to respond to systemic failures, such as lack of education, access to health, education etc. (Though no reference was made to Emergency, but I must take this opportunity to point out that some commentators see rapid development of PIL in India as judiciary’s ‘catharsis’ for its role during emergency). He pointed out that it created an additional forum where the government could be held accountable. In many a cases (environmental law for instance) it triggered legislative machinery to produce law, and did gap filling where required. At this point, a passing reference was made to separation of power. He further said that PIL in India had a “second tier” influence on legal development in the sub-continent, in that, courts of other countries did take note of these decisions by the Indian Supreme Court. This was followed by examples of cases, about which I have mentioned earlier.

As to the Dark Side of the PIL jurisdiction, firstly, he argued that it was capable of, and was in fact being abused. It was being used for surrogate purposes of advancing private or publicity interest using court resources. At this point, he expressed his concerns for excessive liberalisation of locus standi rules and definition of public interest. He also pointed out that PIL was being used to bypass normal route in litigation. (This to me from civil procedure perspective might run foul of ‘abuse of process’ doctrine, where emphasis is not on whether someone fits in text of the law but test is rather the purpose for which it is being used. There could be sanctions/costs implication under the English Civil Procedure.) He agreed that while Indian courts have begun to impose fine, parties generally bear their own costs.

Secondly, that it created an imbalance in allocation of resources. This is a serious concern in any legal system as there are limited resources that have to be used effectively, efficiently and fairly.

Thirdly, judges, he argued, could be motivated by desire of ‘judicial populism’ and to project themselves as crusaders of democracy. While this may have some force, but it must be pointed out that examples given earlier did not engage one in ‘judicial process’, which to me is an inseparable aspect of understanding why court behaved in the way it did.

Fourthly, that the court actually delegitimizes itself by engaging in ‘symbolic justice’ and giving rulings that cannot be enforced. (No distinction however was drawn between ‘progressive realization’ through creeping jurisdiction, and practically unenforceable rulings).

He concluded that there is an urgent need to develop rules to regulate public interest litigation, for it to be utilized effectively and efficiently. Prof. Zuckerman pointed out that we have reached an interesting situation wherein, we had begun to provide direct access to justice with minimum rules as obstacles, and now we want rules to ensure that justice is done. Without rules there is no justice.

This was followed by question and answer session.

In response to a question concerning certain ‘unenforceable directions’, he pointed out that there are no rules for what can be ordered by the Supreme Court as it has power to give ‘appropriate’ relief to do ‘complete justice’, phrases that the courts borrowed from the Constitution. He also pointed out that directions could be unenforceable despite the fact in a collaborative. non-adversarial PIL mechanism government is given full opportunity to place its case. It could be because of resource allocation, or sheer feasibility issues of law enforcement. He pointed out that there are no rules, except expectation that government would behave as model litigant and would not raise mere technical issues to defeat the ends of justice. He cited instances where government was castigated for such a behaviour. He pointed out that the judges have a ‘self-interest’ in not having black-letter rules of law as that would limit their judicial freedom. (At the same time he pointed out that courts in India have interpreted “shall” used in civil procedure to fix time-table of litigation as “may”, giving them power to extend time even when they could not do so under strict reading of the text.) From a civil procedure perspective, this to me, would undermine not only the authority the Parliament that has fixed time-tables to file pleadings, but would also cast doubts on the administration of justice is it issues ‘empty threats’. This is the sort of situation that imposition of sanctions for breach of peremptory orders under civil procedure and Rule 3.9 (Relief from Sanctions) of English CPR aims to address.

He further elaborated on court’s power and discussed its power to take action suo motu, with some reference to principle of Nemo iudex in sua causa (no one should be judge in his own cause). In response to a suggestion from a Dutch student to accommodate “ideological foundation” test to liberalize locus standi rules, he argued for a regime that provided economic disincentive. He pointed out that in 1996 there was a legislative attempt to impose fine for filing frivolous petitions, but it fizzled out in political cloud. In the same breath, he noted that the Supreme Court and High Courts impose fines in appropriate cases which are deposited in court’s treasury – probably recognizing frivolous petitions as injury to administration of justice and causing waste of court’s resources. There is, he pointed out, no costs regime that takes care of such issues. He believes that rules will have to be put in place, and it will have to be seen whether such rules come from courts under its delegated legislative powers, or from the Parliament.

In response to a question of whether the system has been exploited to impose moral policing or as social ordering of female sexuality, he noted that generally this jurisdiction was used to benefit women. Rather vague as it sounds, but the question is such that it calls for much deeper analysis than, I think, is possible in a seminar. He exemplified using sexual harassment cases, and noted that the trend also indicates inclusion of enforcement of rights against private actors using state machinery as surrogate device.

As an Indian student to me, it outlined in simple terms for international students, the broad contours of public interest litigation in India.

(I am thankful to Mr. Tarunabh Khaitan for giving me an opportunity to blog this seminar. I have tried to summarize the seminar on the basis of my notes, and references to Civil Procedure unless specified otherwise are my own observations. Faults, are all my own.)

Written by
Tarunabh Khaitan
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