Story of Public Interest Litigation

Your heroes aren’t the way they seem, When you’ve been where we’ve been.

– The Arctic Monkeys1

Courting the People: Public Interest Litigation in Post-Emergency India is the kind of book you read twice. The first time around, you suspend judgment and simply enjoy it for the compelling story it tells so powerfully and effortlessly. You then give yourself a break of a month or two, allow the book’s spell to fade a little, and then read it again. This time, you pay attention to its endnotes and interrogate the story some more. That is when the cookie starts to crumble, just a little.

Let us make no mistake about this though—Courting the People is an important and ambitious book that has the air of a bantamweight champ about it: slim, sleek, fast-paced and hard-hitting. It is iconoclastic, irreverent, and breaks new ground in its exciting retelling of the story of public interest litigation (PIL) in India; a sterile, overdone subject for legal scholarship, most would have thought.

It is also an instance of a new (and welcome) breed of Indian academic scholarship that does not find the need to use big words to convey high thought. In the “too long; didn’t read” world that we find ourselves in today, the importance of this cannot be overstated. Extremely accessible and interesting, the book should find itself on the bookshelves of anyone interested in law and politics in India. Quite understandably, it has received much attention in academia already and, to the discerning observer, invited some envy as well.

Most accounts of PIL in India have been unabashedly hagiographic, save for a few that have highlighted shortcomings in this highly Indian phenomenon. Many previous assessments of PIL highlight the important substantive outcomes that have often been achieved in PIL cases, be it prisoners’ rights, the rights of the mentally ill, etc, while recognising that PIL is concerned with a relaxation in rigid and formal court procedures.

In the Introduction, Bhuwania states his book’s central thesis quite simply, and in doing so makes procedures of PIL his principal focus rather than its outcomes. He argues that

the fundamental nature of PIL is to be understood in terms of its protean natures that its departure from basic legal procedure make possible, rather than in terms of the themes it addresses, whether it be gender, urban affairs, or the environment. (p 12)
He then puts it, quite bluntly, that PIL “isn’t a romance gone wrong.” Rather “it was a tragedy to begin with” (p 12). Clearly, Emily Dickinson’s immortal words, “Tell all the truth, but tell it slant,”2 do not sit too well with Bhuwania.

On Iconoclasm

Let us get to the iconoclasm first. That he intends to be iconoclastic, Bhuwania makes clear from the beginning. In the Introduction, he refers to the “charisma of heroic PIL judges” (p 5) and the “heroic persona” of the Indian judiciary “made possible by PIL” (p 3). The entire book is then a forensic, calculated attack on these “heroes.” To quote the Arctic Monkeys, our “heroes aren’t the way they seem,” when you have been where Bhuwania has been. If you have any doubts on where he has been, he informs us that his method of “constitutional ethnography” saw him “regularly attend hearings of PIL cases” before the Delhi High Court and the Supreme Court, and interview “several lawyers, judges, journalists, litigants, court commissioners and court-appointed monitoring committee members, many of whom were old PIL hands” (p 12).

There is one more unnamed hero who is under attack. Rather, he is named, but spared the ignominy of express irreverence and never referred to as a “hero” in the text. If there is a subtle leitmotif to Courting the People, it is that Upendra Baxi, the undoubted champion of PIL in Indian and international academia, got it horribly wrong in his hailing of PIL as a revolution in Indian jurisprudence. It would suffice to note here that Bhuwania has the benefit of hindsight that Baxi could not have had when he wrote his seminal piece on the subject, “Taking Suffering Seriously” (Baxi 1985). Baxi, it seems, preferred hope over cynicism.

A Shaky Beginning

Bhuwania’s first chapter is his weakest. It is an attempt at theorising that does not fully convince. He begins the chapter by saying “The Indian Supreme court is widely considered the most powerful judicial institution in the world” (p 16). He then asserts that “the rise in its power follows the reconfiguration of Indian political life in the aftermath of the Emergency of 1975–77” (p 16). One sentence later, he asserts that PIL is “the principal means by which the court has acquired its new importance.” In the next paragraph, he states that “the Indian form of PIL jurisdiction was born in the immediate aftermath of the Emergency” (p 16). He, then, raises a rhetorical question: “Why did the Supreme Court emerge so powerfully only in the post-Emergency period?” (p 17). A few more pages in, referring to the Court’s crisis of legitimacy created by its ignominious role during the Emergency, he asks further: “Yet why did the court have to respond to that crisis of legitimacy in the form of PIL?” (p 25)

The answer, he gives us, drawing inspiration from Kaviraj, is that “the evasion of institutional controls” during Indira Gandhi’s rule was accompanied by a “rhetoric of radicalism,” invoking socialist principles to “evade encumbrances of burgeois constitutionalism” (p 31). The Court, it seems, just mirrored Indira Gandhi’s strategy to the judiciary by “invoking the ‘poor’ to evade constitutionalism” (p 31).These sentences are worth unpacking a little, since they set the stage for Bhuwania’s entire explanation of the origins of PIL. He would have us believe that the entire PIL exercise largely has been an exercise of judicial self-aggrandisement and a ploy to capture power in the post-emergency era, using populism to achieve this end. Indeed, his cynicism comes across so strongly, it is just impossible to ignore. Thus, he speaks of the dramatis personae of PIL “playing to the gallery” and the “theatricality of PIL” (p 5), uncharitable, to say the least, to the many genuine and hopeful contributors to the PIL story over the decades.

Also unnecessary, since his powerful and elegant analysis of what is wrong with PIL has no need for such a tenuous origins story to remain valid. In attacking a few prima donnas of PIL, Bhuwania unwittingly denigrates many of its foot soldiers—advocates, journalists, academics, public-spirited persons and judges all across the country—who have looked to PIL to secure justice for disadvantaged groups, and have, in fact, done so.

First, it is worth noting Baxi’s caution, that the task of periodisation “presents almost insuperable problems” and “almost always entails ideological practices” (Sathe 2002: x).

The notion that the pre-emergency Court was not powerful, or in some way less powerful, is strange. As Mehta has noted, the first 17 years of the Court’s history saw the Court strike down over a hundred legislations as unconstitutional and also saw several constitutional amendments targeted at curbing judicial review (Mehta 2007). Indeed, some of the most extreme assertions of judicial power occurred in the pre-emergency era, with the Court developing and entrenching its power of judicial review over constitutional amendments. These exercises of power were equally, if not more, assertive as what we see in many PILs today. Several of the Court’s early decisions were also “unpopular” in that they annulled land reform legislation that sought to “empower” the newly independent nation’s landless poor.

The Supreme Court was powerful even when it was unpopular. To regard today’s Supreme Court as the “most powerful” also appears strange, when one sees the Court often helplessly witness blatant disobedience for its orders by a powerful government. As some commentators have put it, the Court appears to be evolving a doctrine of constitutional evasion (Bhatia 2016), and that doctrine is a symbol of powerlessness, if anything. Surely, power cannot be judged solely by what the Court professes that it can do. What it does, in fact, do and what other institutions do in response to it are equally relevant.

Second, to assert that the development of the PIL jurisdiction was the “principal means” to the Supreme Court’s “importance” (or power), as Bhuwania does, also rings untrue. Anyone who practises as a lawyer in the Supreme Court, as this reviewer does, will know that a massive proportion of the Court’s work has nothing to do with its PIL jurisdiction. It is a bit of a stretch to assume that this massive special leave petition (SLP) workload does not contribute proportionately to the Court’s “importance.”3 In fact, for quite a while now, the PIL jurisdiction of the appellate courts has proved to be their Achilles’ heel, exposing them to frontal attacks on charges of being overly activistic.

On the whole, Bhuwania’s explanation that the Court’s response to its Emergency ignominy had to take the form of a PIL because it was just mirroring the executive’s strategy of invoking populism to “avoid constitutionalism” seems slightly conjectural. He also seems to accord no space at all to the possibility of genuine contrition by the Court and the multitude of its actors. Moreover, he completely devalues the access that PIL has secured for the many oppressed and disadvantaged groups, who had until then fallen completely off the radar of the Indian justice system.

Critique and Impact

In the chapters that follow, Bhuwania is in his element. His second chapter, titled “The Case that Felled a City,” tracks two omnibus PILs in the Supreme Court that reshaped the city of New Delhi and had a substantially disproportionate impact on several disadvantaged groups that had inhabited the city. In his third chapter, titled “Public Interest Litigation as a Slum Demolition Machine,” Bhuwania takes on the Delhi High Court, focusing particularly on the adverse and unjust impact that PIL had on slum-dwellers and unauthorised settlements in New Delhi.

The lens that Bhuwania uses to critique is exclusively procedural. He identifies, among others, the following facets of the PIL jurisdiction to be a problem: (i) The diminishing relevance of the petitioner in the PIL process and the rise of suo motu PILs. (ii) The disproportionate power given to certain senior lawyers in the PIL process through their appointment as amicus curiae to assist the Court. (iii) The failure of the PIL process to ensure that persons affected by the Court’s orders were heard before decisions that gravely affected them were taken. (iv) The rise of “omnibus PILs” with constantly shifting causes of action and the conversion of PILs concerned with a specific area of the city to all-encompassing citywide PILs. (v) The shift towards making far-reaching unreasoned interim orders in PIL cases instead of passing reasoned judgments. (vi) The adoption of lower evidentiary standards in factual adjudication in PIL cases.

Bhuwania demonstrates each of these faults in the PIL process through a forensic and clinical examination of the orders passed by the Supreme Court and the Delhi High Court and the reactions of various persons who were party to and affected by the PIL process. He is an absolute pleasure to read in these chapters. This is undoubtedly the part of the book that makes it an essential reading for law students, practitioners and academics alike. There is something in there for everyone. While some of his conclusions regarding a conscious campaign of capture of power by the judiciary seem a bit far-fetched (as indicated earlier), he is certainly very convincing in his demonstration of the fundamentally protean nature of the PIL jurisdiction that follows from the complete evisceration of procedural fetters on the Court. He makes a watertight case for the reintroduction of procedural safeguards in the PIL process.

Surveying the Terrain

In his penultimate chapter, titled “Good Judges, Bad Judges,” Bhuwania surveys the existing critiques of PIL. He identifies two dominant strains of critique, that is, “consequentialist critique” and “institutional critique.”

The consequentialist approach, typically espoused by the left-liberal activist constituency, focuses on the issues that PIL cases consider and their outcomes. Thus, while pre-liberalisation, PILs focused on issues of poverty and rights of marginalised groups, post-liberalisation, PILs shifted attention to environmental and governance issues. This literature is marked by its approach of characterising individual PIL judges as “good” or “bad.”

According to Bhuwania, such critiques fail to address the fundamental question: “Why is the PIL court so effective as the agent of ‘neo-liberalism’ in India” (p 114)? It also completely overlooks “the remarkable continuity between these two phases of PIL in terms of the processual instability at its heart” (p 114). Such ideological critique also fails to accommodate criticisms and that demanded intellectual and logical rigour in the Court’s reasoning; such criticisms are dismissed as “excessively legalistic or elitist.”

The institutional approach focuses both on the ideological transformation of the PIL court and on judicial process. However, to Bhuwania, these critiques do not go far enough, partly because they attribute the problems of PIL to its “misuse” rather than to recognise that “PIL gave blanket powers to judges to act on their ideological beliefs” (p 127).

Bhuwania concludes with a chapter titled “The Procedural is Political,” and sums up by suggesting that the legal informalism and panchayati justice that characterise the PIL process have “infected every part of the legal system” (p 127). These ominous words are not to be ignored. For my part, I will sum up, by just saying that this is a wonderful book to read. It is worth its price tag, and a bit more.

Notes

1 The Arctic Monkeys is an English Rock Band. The quote is from their single released in 2006.

2 The quote is from a poem, also titled “Tell All the Truth, but Tell it Slant” written by the renowned American poet Emily Dickinson. The poem ends with the words “The Truth must dazzle gradually/Or every man be blind.”

3 The Supreme Court’s docket, for many years, has been overwhelmingly burdened with special leave petitions, and writ petitions (public interest litigations are usually writ petitions) form a relatively small percentage of its work. See Chowdhury (2016) and Robinson (2013).

References

Baxi, Upendra (1985): “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” Third World Legal Studies, Vol 4.

Bhatia, G (2016): “ ‘O Brave New World’: The Supreme Court’s Evolving Doctrine of Constitutional Evasion,” viewed on 17 July 2017, https://indconlawphil.wordpress.com/2017/01/06/o-brave -new-world-the-supreme-courts-evolving-doctrine-of-constitutional-evasion/.

Chowdhury, R (2016): “Missing the Wood for the Trees: A Critical Exploration of the Supreme Court of India’s Chronic Struggle With Its Docket,” JSD dissertation, University of Chicago.

Mehta, P B (2007): “The Rise of Judicial Sovereignty,” Journal of Democracy, Vol 18, No 2, pp 70–83.

Robinson, N (2013): “A Quantitative Analysis of the Indian Supreme Court’s Workload,” Journal of Empirical Legal Studies, Vol 10, No 3, p 570.

Sathe, S P (2002): Judicial Activism in India—Transgressing Borders and Enforcing Limits, New Delhi: Oxford University Press.