Judicial Activism, PILs and all that jazz

As a follow up from Madhav’s post, I think that terms like ‘judicial activism’ can hide more than they reveal. One needs to be careful about the precise judicial role where the court is being accused of being activist. PIL is strictly a standing issue, and the only relevant question at this stage is who should be allowed to bring in an action. The various possibilities, using Cane, include (a) direct and sufficient interest standing, (b) associational standing (where a group of persons having direct and sufficient interest is represented by an organisation or person), and (c) public interest standing (where the petitioner represents the public interst).

All three categories involve different issues. It is crucial in (b) that the representation is authorised in some form by those represented – Cane calls for a ‘democratic stake’ by those represented in the association. The simple idea is that the association needs to have some basis on which it claims to represent my interest. This category is similar to class-action suits.

In (c), on the other hand, it is important that if public interest standing is to be allowed at all, the petitioner must do a good job of it. It is much better to not allow an inexpert (if well-intentioned) petitioner bringing in a badly argued case which creates bad precedent since it does more harm than good to the public interest. Of course the boundaries between (b) and (c) are fuzzy and there will be overlap. Was the Narmada Bachao Andolan case about associational standing or public interest standing? Rules need to be evolved for these hybrid cases, but it does not detract from the basic distinction.

Justiceability, on the other hand, is a concept distinct from standing, and should arguably apply equally to whoever brings the action. Here one has to consider whether there is any area of law which is completely inaccessible to the judiciary. I personally believe that once a violation of fundamental rights has been made out, the Court has no option under Article 32 but to consider it as justiceable – although it can accord limited deference to the Executive or the Legislature, depending on the subject matter. A good example of a case which was (wrongly) thrown out at entry stage on justiceability grounds even though it involved important fundamental rights issues was Ahmedabad Women Action Group (involving constitutional challenge to personal laws). Hunt argues against the spatial concept inherent in any talk of ‘areas of deference’ and says that no case can be a priori judged to be non-justiceable if it prima facie involves fundamental rights violation. The degree of deference due is a judicial decision that needs to be decided on the facts of the case, and not at the entry stage itself. Deference is obviously connected with the issue of the appropriate standard of review.

Justiceability should also be distinguished from a (legitimate) screening method used at the entry stage – whether a prima facie case has been made out (or, in other words, whether the petitioner has any chance of success) is a distinct and legitimate resource management consideration.

Finally, activism in the context of remedies is also an entirely separate issue, and one has to consider the question in the context of Article 142 (‘complete justice’ requirement).

When talking about judicial activism, we need to be clear in what context we are discussing it. A Court may be ‘activist’ on standing and remedies, which being retrogressive on standard of review.

(Comments, as always, are welcome, from stray and astray readers alike)

Written by
Tarunabh Khaitan
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  • I wonder whether we can ever justify the Court’s interference in certain matters (as an aspect of justiciability, in a broad sense) on purely doctrinal grounds like violation of fundamental rights. I think a lot of us tend to forget how political the Court can and must be. The most pointed example I believe are cases involving preventive detention, where the Court has more often than not generaly deferred to executive and legislative judgment. And that is, I believe, exactly what happened in AK Roy, (inspite of Maneka and Sunil Batra) where the Court had to stand back on the issue of substantive due process, precisely because it was a case of preventive detention. This is a sort of preliminary observation on the basis of some research I have been doing recently, but it is possible to disprove it emperically.

    – Prasan Dhar

  • Thanks Tarunabh for this wonderful post. I think it may be interesting to debate whether, as you suggest “PIL is strictly a standing issue”. I tend to agree with you, but a fascinating article I just came across is: Carol Harlow, Public Law and Popular Justice, 65 MODERN LAW REVIEW 1 (2002). Professor Harlow argues that the consequences of representative litigation go far beyond just standing, and thus should be viewed with caution. While her article relates to representative litigation in the UK, it may have even more applicability in India.

  • Despite the fears of a court gone rampant, what percentage of admissions are composed of PILs? Is there any sense of whether this has declined or gone up?

  • Agree with Red that our debates are often based on anecdotal rather than statistical evidence. Some of Nick Robinson’s posts on this blog have emphasised on a more rational statistical analysis of the judiciary, though much work needs to be done in this area.

    Madhav, thanks for your comment, and I think it does force me to make a small modification to my claim. I agree that Harlow’s piece is seminal and she puts a strong case forward against public interest litigation generally. But I think, for the Indian context, what is particularly relevant is her worry that some causes could not have been brought to court by individuals (where the impact is diffused and not sufficiently on any individual in particular – environment issues, consumer issues etc). These ‘diffuse interest’ cases can only come before the court as ‘public interest’ cases, and they allow the court to get jurisdiction over an area of law using principles of standing that it could not otherwise have had. we can have a distinct debate about this particular category of cases, because here standing is indeed connected with jurisdiction and justiceability. but for all other cases which in theory could have been brought as a direct interest case as easily as a public interest one (like Ahmedabad Women Action Group), the distinction must be retained.

    Prasan, I think that detention cases typically form the core of judicial competence. They, I think, are reasonably non-polycentric (as Fuller uses the term) for courts to legitimately not accord any deference to other branches. Protection of individual liberty is classic judicial role and should remain so.

  • Tarunabh,

    But that is exactly my point. If it is your claim that cases involving indidvidual liberty for the core of judicial competence, then the question remains as to why the Court has deferred to Parliament on most occasions?

    I think it is rather hard to us for argue at a doctrinal level that anything forms the core of judicial competence, because our arguments tend to forget the political nature of the Court. Of course, we may argue at the level of theory that so and so must form the core part of the judicial role, but then how does that translate into practice? And somewhere, that is my central worry. I am possibly as circumspect of judicial review theory as Baxi is. (in Supreme Court and Politics, and Courage, Craft, Contention and also Geographies of (In)justice)


  • Prasan, thanks for your comment. Obviously my doctrinal argument is normative, and if the practice does not fit into it, either the court or I have got it wrong.
    I agree that legal realism accounts of the political nature of court are useful frameworks for critique, but I doubt their utility for exploring normative possibilities – you might say I am one of those naive people who believe that we must scream normativity from the roof top, and hopefully someone will (and some people do sometimes) listen. if the naz case goes the way the petitioners want it to, it might be the strongest example in favour of the ‘utility’ of normative theory (this is not to discount the role that politics of the gay rights movement would have played to achieve the result, but look at the arguments actually advanced in court, especially by Shyam Divan).