The Core of the Case against Public Interest Litigation: Book Review

– Samya Chatterjee*

Note: This piece was originally published on 31 December 2017.

Name of the Book: Courting the People: Public Interest Litigation in Post-Emergency India Author: Anuj Bhuwania Publisher: Cambridge University Press

Public Interest Litigation (PIL) according to its advocates and critics has been one of the hallmarks of the Indian judiciary. It is one of the most deliberated upon issues in India’s legal landscape and especially in legal academia. An informed person on PIL can be excused for asking upon hearing about the book “Is there anything else to be said about PIL”? The answer to that is a resounding yes. The author doesn’t mount a defence in favour of PIL or lament about it straying from its original role as the “last resort for the oppressed and bewildered”.[1] He makes an original, immensely engaging and a very compelling case against the institution[2] of PIL itself. The author’s central argument in Courting the People is that the celebrated procedural informality is the root cause of the judiciary’s arbitrary and erratic use of the PIL to promote the pet causes of individual judges. It is important to note at the outset that the perspective of the author is not that of an ivory tower academic performing verbal gymnastics, but of someone as a participant in fighting PIL cases, observer of PIL cases being argued in the Supreme Court of India over a substantial period of time, interactions with court reporters and senior lawyers involved in PIL cases and social activists.[3] To this wide range of field experience, he brings his formidable academic training in law and anthropology.[4]

The review has been divided thematically i.e. (a) courts focus on social justice as the rationale for PIL (b) the story of omnibus PIL within which the slum demolition story has been told (c) value judgment by the courts to understand PIL and (d) rise of good governance courts. Within each theme, I have covered the author’s take, other available literature and my reactions. PIL or Social Action Litigation (SAL)[5] as it has been referred to by its principal advocates, has been hailed historically for its willingness to relax procedural requirements to advance the cause of holistic justice. According to Justice P.N. Bhagwati, one of the central figures of the PIL movement in India and the author’s favourite punching bag, procedural requirements like locus standi,[6] reading “appropriate proceedings” under Article 32[7] in a restrictive manner and the adversarial nature of the proceedings were not suited to India’s social fabric.[8] The procedural requirements owed its origin to an Anglo-Saxon system defined by the right-duty pattern. It is intrinsically suited for an individualistic society and is ill-equipped to respond to social rights and collective claims of the underprivileged.[9] PIL according to P.N. Bhagwati was designed to respond to these unique set of circumstances in India.[10] The author does not agree with the assertion that PIL was driven solely by the vision of equitable and accessible justice but argues instead, that it was motivated principally by the desire to speak for the people of India in a language analogous to the executive of the 1970s. As an illustration, the author cites the largely hands-off approach of the court in cases concerning violation of civil liberties owing to state repression.[11] The court also began justifying its decisions in the name of the people echoing the then prevalent language of the executive i.e. the central government. The author attributes this as a response to redeem its battered reputation post the emergency as well as it’s characterisation as an elitist institution and not being a “committed judiciary”.[12] A similar argument has also been advanced by Pratap Bhanu Mehta that the judiciary’s decision is not just rooted in the constitutional text but the political climate within which it is functioning.[13] A tussle for legitimacy with the executive is a characteristic feature of Indian democracy and PIL is no stranger to this phenomenon.[14] To be fair to P.N. Bhagwati, he had admitted that social justice was driven by the need to acquire social and political legitimacy for modern judiciaries.[15] It was this desire for social justice that led to the seminal decisions in the early years of the PIL. The author disagrees vehemently with this proposition stating that PIL was primarily a revolution in judicial procedure which eventually led to tragic consequences.[16] To substantiate his case, he takes us through the trajectory of two cases involving de-industrialization and demolition of slums. He asserts that the lack of any defined procedure led to instances of the original petitioner becoming a non-entity in the PIL, the court expanding the issues in the PIL from a specific to a general one and in some instances a completely unrelated issue, the revealing role of the amicus curie to steer the case in a particular direction and their status as a filtering mechanism through which all interested parties had to approach the court and the socio-legal commissions who were advancing the court’s agenda rather than being a fact- finding body. The trigger for writing Courting the People was when the author assisted in filing a legal response to an order directing the demolition of a slum, under a writ petition whose existence was not known even to the inhabitants of that particular slum. During the course of his work, he discovered a unique form of PIL which he aptly calls the “Omnibus PIL”. The “Omnibus PIL” became the instrument through which the judiciary assumed governance power over the entire city in the author’s telling. An illustrative case narrated by the author is Kalyan Sanstha Social Welfare Organizations vs. Union of India & Ors.[17] In this case a dispute between two neighbours over an illegal construction escalated into an issue of illegal constructions in three localities of New Delhi wherein the court ordered either regularization of the illegalities or demolition of unauthorized constructions, whichever was feasible. On another writ petition being filed over not adhering to the court’s orders and being listed before an overzealous judge, the case acquired a fresh identity of its own. It was first expanded to cover all unauthorized constructions over the city and court commissioners[18] were appointed to act as the “eyes and ears” of the court in monitoring the illegal constructions.[19] Finding monitoring too arduous a task, the court appointed another monitoring committee consisting of retired and serving policemen to implement its orders.[20] The success of the monitoring committees was measured in the value of the “public land” being recovered.[21] The judge, seemingly unsatisfied with the ambit of this case, added another pet theme of his to the petition i.e. slum demolition.[22] The prosperity of the inhabitants of the slums, who had constructed two-three storied buildings in place of their jhuggis, became their nemesis. The case soon had a designated slot every week and a spacious room allotted to accommodate the court’s generosity. In one of the most hilarious and revealing moments in the book, the author describes how the media was given a pride of place in the courtroom just beside the court-clerk and volatile remarks like “Catch the big fish” or “We don’t care about municipal councillors” being directed at the journalists. them. One gets the sense that the court was almost dictating the headlines for the next day’s news. It is real-life observations like these of the judiciary’s functioning, and there is one for every case discussed in depth, that adds gravitas to this book. The colourful and immersive account of these cases has much to offer in terms of aesthetic pleasure and is a key reason why this book deserves to be read outside the legal academy. The author does not agree with other observers of the PIL phenomenon that the judiciary had betrayed the cause of social justice. Prashant Bhushan, one of the principal crusaders for transparency in governance and a veteran of the PIL movement as a lawyer had located the cause of the judiciary’s behaviour in its capitulation to the narrative of “economic reforms”.[23] For Usha Ramanathan who has written extensively on the issue of slum demolitions, it was the court’s focus on excessive legality which was the chief culprit. The fact that there are no laws which deal with the habitations of urban poor became the legal instrument through which demolitions were effectuated.[24] A Law Commission report and judgments in the early days of the PIL were sympathetic to the need for a specific statute to deal with habitations of the urban poor, considered right to shelter as having the status of a fundamental right as well as the necessity of providing alternative sites before demolition.[25] In the later years, occupation of public land was declared illegal, relocating all the slum-dwellers was deemed impossible and providing alternative sites was interpreted as a means of encouraging violations of the law.[26] In the author’s telling of the slum demolition story, the betrayal, if any, was one of procedure inherent in the DNA of PIL.[27] The author has not adequately recognised that PIL made possible the interpretation of certain constitutional provisions in a more robust and holistic manner. It gave depth to Article 21 by reading in the directive principles of state policy within its ambit.[28] While it is true that the lack of procedural safeguards made individual judges adopt their favourite concerns, the decisions were a result of a form of value judgment being exercised by the court. In this light, the theory of “elite institutionalism”[29] propounded by Manoj Mate offers a valuable insight in understanding the nature of the 21st century PIL. Within the ambit of elite institutionalism lies the structure of “elite-meta regimes” which seeks to forge a consensus on the contemporary social issues of the day.[30] In this reading, the initial phase of PIL was influenced by the background and experiences of judges e.g. Justice Krishna Iyer’s communist leaning and prison terms had made him perceive PIL as a matter of life and not just law.[31] A landmark conference organized in 1984, which had participation from the leading light of the judiciary in India and Germany along with senior government officials from both the countries, had highlighted the role of the judiciary in advancing equality in the backdrop of changes in the social and economic ideologies prevalent in the country.[32] Similarly, the rise of the coalition governments along with the systemic corruption at the highest level of the government in the 1990s led the judiciary to enter the governance arena. It helped the judiciary’s cause that it still enjoyed the status of a holy cow amongst the other branches of government.[33] The change in discourse from a welfare state to economic liberalization also influenced the worldview of the judges. The court’s worldview was shaped by the arguments of the senior advocates, newspaper reports and editorials and the advice of the court-appointed commissions who were advancing a certain technocratic view of governance.[34] The judiciary does not function in silos and the author’s disengagement with the forces outside judiciary shaping PIL in a substantive manner is my fundamental disagreement with the author’s analysis. The author’s excessive focus on the procedural aspects exposes him to the charge of looking at PIL only from a teleological lens – a charge he hauls at the hagiographers of PIL.[35] The procedural aspect deserved to be exposed and the author does it exquisitely, especially in the case which he strikingly calls “the many-headed hydra”.[36]

An analogous theory to the elite institutionalism model is the rise of the good governance court, aptly illustrated by Nick Robinson. In the author’s telling of the governance story, the court’s role in curbing vehicular pollution in Delhi is illustrative. The initial orders were relating to nature of the fuel to be used by vehicles and removal of commercial vehicles of a certain age. It eventually led to the court deciding that all commercial vehicles used for public transport had to shift to CNG. Different committees gave completely divergent opinions on the feasibility of CNG but the rationale for choosing one over another was weak.[37] The manner in which the court decided the choice of fuel revealed the exclusive nature of governance implemented by the court. The recommendations of the committee appointed by the court to ban private vehicles using diesel was ignored and orders were issued only to conform to more stringent engine standards. There was no reason given for this differentiation between private and the commercial vehicles. The original petitioner was removed and the amicus curie was the mechanism through which the court filtered the relevant aspects of the case. Consequently the number of stakeholders involved was miniscule. The auto- rickshaw drivers whose livelihood were the worst hit by this decision found both the court and the amicus curie opposing their claims for increasing permits post the conversion to CNG.[38] The auto-rickshaw drivers who should have been the original constituency of this PIL considering its original vision now found themselves relegated to the sidelines. The author pins the blame on the processes involved during the PIL hearings and rightly so. But the court’s propensity to govern in the backdrop of judiciaries across the world, donning the same role, is a missing link in the author’s narrative. Judiciaries in South Asia, Latin America and Africa have evolved forms of governance to address the question of justice through focussing on social and economic rights.[39] The societies in these countries inherited the Anglo-Saxon form of jurisprudence owing to their colonial heritage. It became necessary to innovate and PIL has found resonance amongst the judiciaries especially in South Asia.[40] Nick Robinson has termed this the possible globalization of the good governance courts.[41] The book despite its drawbacks is a much needed intervention to break the singular narrative surrounding PIL. It will be widely deliberated in legal academia for its themes as well as the style of presentation. The author eschews the usage of superfluous language, which is a characteristic feature of academic writing in India. The narrative style is an illustration of how the staid language of the law can be presented in a sombre yet lively manner. In this pursuit, it is also aided by the beautiful intermingling of the academic disciplines of law and anthropology. The author carries his scholarship lightly and for this reason alone it deserves an audience outside the legal academy. I owe a debt to Professor Jeremy Waldron from whose essay “The Core of the Case Against Judicial Review”, the title of this book review is inspired. *Samya Chatterjee graduated from West Bengal National University of Juridical Sciences, Kolkata in 2011. After his graduation, he worked with J. Sagar Associates, New Delhi and Observer Research Foundation, New Delhi. He is currently pursuing his masters in law from National Law University, Delhi. The author wishes to thank the editors at SLR for their feedback.

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References

[1] Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, Third World Legal Studies, June 1985, at 107, 107.

[2] I use the word institution in order to highlight some of the author’s observations of PIL having a status distinct from the normal functioning of the judiciary in contemporary times with its recurrent interim orders, frequent expansion of the ambit of the original PIL, the distinctive stamp different judges leave on the PIL who are aptly aided by the amicus curie and the commissions of enquiry.

[3] The author refers to this mode of enquiry as “constitutional ethnography” i.e. the study of central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape. To see more refer to Anuj Bhuwania, Courting The People 10 (1st edn., 2017).

[4] Anuj Bhuwania pursued his bachelors in law from National Law School of India University, Bangalore and holds a PhD from Columbia University’s Anthropology Department. This book is a reworked version of his PhD dissertation.

[5] The phrase SAL has been used to emphasise its focus on disadvantaged sections of the society as well as the collaborative approach of the courts, lawyers and the beneficiaries in alleviating suffering. To see more on SAL and its differences with PIL, refer to Baxi, supra note 2, at 108-109.

[6] The rule of locus standi is necessary to avoid frivolous litigations before the court. Its efficiency is based on an implicit understanding that people are aware of their rights and have the requisite resources to enforce those rights. In the India of the 1970s, people afflicted by poverty and ignorance were not in a position to assert their rights. To see more refer to S.P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J.L. & Pol’y, 29, 70-72 (2001)and P.N. Bhagwati& C.J. Dias, The Judiciary in India: A hunger and thirst for Justice, 5 Nujs Law Rev., 171, 177 (2012).

[7] Article 32 provides a mechanism for enforcement of fundamental rights by the Supreme Court through the issuance of directions, orders or writs. In the initial decades after the framing of the Constitution Article 32 was read restrictively leading to inaccessibility of a large section of the population to recourse under this article. Article 32 was available only to the wealthy who had become the “repeat players” of the litigation game to use the arresting phrase used by Marc Galanter. Therefore appropriate proceedings were expanded to include an informal manner of approaching the court for those fighting for the downtrodden. Hence even a handwritten letter to the court would be accepted leading to the birth of epistolary jurisdiction. To see more refer to Bhagwati, supra note 7, at 177-178.

[8] To see a more detailed discussion on how the procedures were disbanded, refer to P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 Colum. J. Transnat’l L., 561, 572-575 (1984).

[9] Bhagwati, supra note9, at 570.

[10] The author has termed this the “indigeneity of PIL”, which contributed significantly to its enduring allure. The precursor to PIL were the various legal aid camps set up across the country in the mid-1970s, padyatras by High Court judges to solve people’s grievances and lok adalats to provide informal justice. In this scheme of things, PIL was the culmination of “debased informalism”. To see more on this refer to Bhuwania, supra note 4, at 31-34 and Baxi, supra note 2, at 113.

[11] To see more refer to Bhuwania, supra note4, at 26-27.

[12] To see more, refer to Bhuwania, supra note 4, at 22-23.

[13] Pratap Bhanu Mehta, The Indian Supreme Court and the art of democratic positioning, in Unstable Constitutionalism: Law and Politics in South Asia 231-232, 243-245 (Mark Tushnet & Madhav Khosla eds., 2015).

[14] Id., at 245-249.

[15] Bhagwati, supra note9, at 566.

[16] According to the author PIL was a tragedy to begin with and has over time become a dangerous farce. To see more refer to Bhuwania, supra note 4, at 12.

[17] Civil Writ Petition 4582/2003.

[18] The Court Commissioners were appointed to implement the orders of the court by conducting periodical inspections and informing the relevant authorities (Commissioner of Municipal Corporation of Delhi or the Commissioner of Police). The Court Commissioners were lawyers and their communication details were made public for citizens to directly approach them. To see more on the Court Commissioners, refer to Bhuwania, supra note 4, at 99.

[19] The monitoring committees submitted reports periodically to the court and the court passed orders relying on these reports. The transparency of these committees left much to be desired for and in one instance, the monitoring committee was found issuing verbal orders without the authority of the court. To see more on the functioning of the monitoring committees, refer Bhuwania, supra note 4, at 100-101 and 103-105.

[20] According to P.N. Bhagwati, these monitoring agencies were a necessary component of PIL. If the court orders were not enforced owing to aa callous state machinery, it would fail to bring justice to the disadvantaged groups as well as make PIL ineffective. To see more on the role of monitoring agencies during the initial days of PIL, refer to Bhagwati, supra note 9, at 577.

[21] The media too lapped up this narrative giving it a place of pride. In a telling instance, a leading English daily quoted the value of the land being recovered from the “encroachers” on its first page.

[22] Slum demolition as a pet theme had emerged in another case wherein a petition for solid waste management led to a judge blaming slums for the problem and comparing them to “pickpockets”. To see more, refer to Bhuwania, supra note 4, at 82-84.

[23] Challenges to arbitrary nature of disinvestment by the government, prima facie illegality in the manner in which certain infrastructure projects had been approved, approval of telecom licences to a favoured firm despite its miniscule net worth were all set aside on technical and legalistic grounds. In one instance, the court had refused to grant interim orders in PIL questioning development projects. In Anuj Bhuwania’s account, the seemingly never ending interim orders in PIL were a favoured mechanism of the court to exercise its power in perpetuity. To see more on the judiciary’s infatuation with economic reforms, refer to Prashant Bhushan, Supreme Court and PIL, 39, Economic and Political Weekly 1770, 1770-1772 (2004).

[24] To see how the law has dealt with the issue of urban poor, refer to Usha Ramanathan, Illegality and the Urban Poor, 41,Economic and Political Weekly 3193, 3193-3197 (2006).

[25] Usha Ramanathan, Demolition Drive, 40, Economic and Political Weekly 2908, 2908-2909 (2005).

[26] Usha Ramanathan, Demolition Drive, 40, Economic and Political Weekly 2908, 2909-2910 (2005).

[27] Bhuwania, supra note 4, at 116.

[28] In Unni Krishnan v. State of A.P. (AIR 1993 SC 2178), it was held that the right to education was covered within the ambit of right to life and liberty. The directive principles under Article 45 and Article 41 of the Indian Constitution was relied upon and read within the ambit of Article 21. The case came to the Supreme Court by way of a PIL.

[29] Elite institutionalism seeks to locate the judicial behaviour in the environment of political, professional and intellectual elite within which members of the higher judiciary function. Their participation in the discourse framed by the elites of a society directly informs their judicial perspective. To see more on the concept of elite institutionalism and how it compares with the existing theories of judicial behaviour, refer to Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India, 33 B.U. Int’l L.J. 169 2015p. 208-211.

[30] Mate, supra note 29, at 210.

[31] Mate, supra note 29, at 214.

[32] To see more on the proceedings on the conference, see Mate, supra note29, at 214-215.

[33] To see more on how senior lawyers and journalists perceived the court, see Mate, supra note 29, at 219-221.

[34] To see more on the elite meta-regimes influencing the judiciary, see Mate, supra note 29, at 218-219.

[35] In the worldview of the consequentialist critics of PIL, it is a question of progressive and regressive judges that influence the outcomes. Furthermore the class-based nature of the Indian judiciary influences the decision making process. Accordingly, a judgment based on sound legal reasoning came to be perceived as elitist and legalistic. To see more on the author’s take on the consequentialist critics of PIL, refer to Bhuwania, supra note 4, at 113- 119.

[36] The author refers to a particular writ petition filed in 1985. The petitioner had filed the case for closure of stone crushing units responsible for dust pollution in the city. He then went to file petitions concerning pollution in Delhi and the court also considered the protection of a ridge forest in Delhi. The court then entertained an application regarding mining operations in Haryana and barred the same within the ambit of the original writ petition. The arrival of Justice Kuldip Singh, who was fondly referred to as the “green judge”, turned the trajectory of the case towards deindustrialization of Delhi by closure and relocation of the industries giving short shrift to the rights of workers employed in those industries. The arrival of another judge turned the case into the direction of closing commercial establishments in residential. The court was now intimately concerned with the development paradigm of Delhi. In this case, the original petitioner was redundant by the 1990s and the amicus curie became the central figure guiding the court. The Master Plan of Delhi and the ineptitude of the municipal authorities became the instrument through which the court implemented its agenda.

[37] Lavanya Rajamani mentions that CNG was a high-cost option, consumes more energy, emits more greenhouse gases than diesel and has an adverse impact on the health of the drivers of CNG vehicles. To see more on the deliberations surrounding CNG, refer to Lavanya Rajamani, Public Interest Environmental Litigation In India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 Journal of Environmental Law 293, 312-314 (2007).

[38] The amicus curie had argued that auto rickshaws were the cause of traffic congestion and therefore prone to causing pollution when in stationary mode. See Bhuwania, supra note 4, at 56.

[39] The limitations of soviet style communism and American style capitalism were also factor assisting the rise of the good governance. For the judiciary, good governance was also a means to gain legitimacy over other branches and the people. These are some of the factors which aided the rise of PIL in India. The court’s interventionist approach in the sphere of social and economic rights rather than replacing the role of the executive or legislature often acts as a trigger for executive action in these areas. To see more on how judiciaries in the global south embraced the language of good governance in the matter of social and economic rights, refer to Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 Wash. U. Global Stud. L. Rev. 1, 60-63 (2009).

[40] Robinson, supra note39, at 61-62.

[41] Robinson, supra note39, at 58-59.