(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, that began with an introductory post last week).
I do not have much by way of substantive disagreement with the seven theses advanced by Anuj Bhuwania in his foundational critique of the Supreme Court’s public interest litigation jurisprudence. In this essay, I will, instead, seek to extend his arguments further, and raise a few questions about what follows from his final conclusion.
A Minor Quibble
First, a minor note of dissent. Bhuwania points out that the rise of public interest litigation was accompanied by a patronising judicial attitude towards the “people” in whose name PIL was justified, and also “a looseness of legal language“, which entered the judicial domain with Justice Bhagwati (p. 117). I think this is too strong a claim. Paternalism and loose legal language did not begin with PIL. Both are in strong evidence, for example, in Ranjit Udeshi vs State of Maharashtra, where a five-judge Bench ruled on the constitutionality of obscenity, and whether or not Lady Chatterley’s Lover was obscene. Chief Justice Hidayatullah, speaking for the Court, not only adopted the ultra-paternalistic, Victorian Hicklin Test for obscenity, but also attempted a literary analysis of Lady Chatterley’s Lover – with predictably disastrous results. In K.A. Abbas vs Union of India, the same judge upheld pre-censorship of films on the basis of how the coordination of “visual and aural” senses necessitated more stringent restrictions for cinema than for the written word. In a different domain, in Sastri Yagnapurushadji vs Muldas, the Supreme Court substituted its own understanding of Hinduism for the understanding of the religious sect that had brought the case to Court. Paternalism, I would submit, did not originate with PIL, even though PIL might have given the Court much more leeway to be paternalistic. Rather, it has been a continuing issue with the way the Court has approached questions of rights, and in many ways – as has been argued – it has tended to mirror and continue colonial logic.
The Shields that Failed
Civil Rights and Guidelines
In his opening chapter, Bhuwania makes the following provocative claim:
“… the delegitimisation of legal procedure that accompanied the rise of PIL in India… has actually made it easier for courts to justify and overlook departures from the basic principles of criminal procedure that mark such [i.e., special criminal] statutes.”
Let us take this argument further. One speciality of PIL, which the book does not excavate in too much detail, is the Court’s penchant to take over executive (and sometimes legislative) functions, by laying down “guidelines” in cases where it feels that the statute is inadequate (e.g., D.K. Basu vs State of West Bengal, guidelines for arrest), or non-existent (Vishaka vs State of Rajasthan, sexual harassment at the workplace). There is, of course, a separate separation of powers critique of this practice, which has been a hallmark of PIL since it began. However, there is a deeper issue as well: we see that the habit of laying down guidelines subsequently migrates from PILs to core civil liberties cases. For instance, in Kartar Singh vs State of Punjab, the Supreme Court upheld the constitutional validity of the anti-terror statute, TADA, including the fact that TADA made confessions to a police officer admissible, but also laid down “guidelines” to ensure that the confessions are not “tainted by any vice“. In Naga Peoples’ Movement on Human Rights vs Union of India, the same thing happened with the constitutionality of the Armed Forces Special Powers Act (these cases occur around the same time as D.K. Basu and Vishaka). The framing of “guidelines” effectively gave the Court what can only be called an easy cop-out: it was able to uphold the validity of these laws, while satisfying its conscience by laying down guidelines to prevent “abuse”.
The problems with this approach are manifold. First, the very fact that the Court felt the need to lay down “guidelines” suggests that in the absence of such guidelines, there were grave doubts about the constitutionality of those statutes. But is it a constitutional court’s job to bend over backwards to rescue an otherwise unconstitutional statute by inserting “guidelines” into it, where none existed? Should not the Court instead strike down the statute, and let the legislature do its job of bringing it in line with the Constitution? And furthermore, what the Court did in these cases goes against the grain of international constitutional practice. It is well-accepted that a facially unconstitutional statute cannot be saved by executive guidelines that narrow or clarify its scope: the law must stand or fall in its own right. However, in cases such as Kartar Singh and Naga Peoples’ Movement, the Court decided that it could do what it would not permit the Executive.
Secondly, it need hardly be stated that the Supreme Court’s guidelines have very little traction on the ground (a good example is how arrests under the sedition law continue to be made despite repeated issuance and endorsement of “guidelines”). This, of course, is one of the standard internal critiques of PIL: the Court simply isn’t in a position to actually enforce or implement its guidelines. Unlike in PIL, however, there is a much greater problem in civil rights cases: the statute continues to operate, and the Court’s “guidelines” are never followed.
In sum, incorporating PIL-style reasoning into civil liberties cases effectively ensures that constitutional civil rights become parchment barriers, because a Court can always convince itself that it has adequately addressed the problem by laying down guidelines. The guidelines option spares the Court from having to make a stark moral choice: either subordinate civil rights to presumed national security concerns entirely, or affirm the centrality of those rights by striking down the law. Bhuwania’s invitation in Chapter One, therefore, must be taken up seriously. Close attention ought to be paid to how PIL-style reasoning has migrated to other domains, and what effects this has had.
Equality and Article 21
Since the 1980s, constitutional jurisdictions across the world have made significant conceptual advances in their understanding of the right to equality. The courts of Canada, South Africa, Colombia, and the European Court of Human Rights, to name just a few, have developed nuanced and detailed interpretations of equality, that have moved away from a formal classification test, and have embraced ideas of structural and institutional disadvantage. It is striking how this development has entirely bypassed the Indian Supreme Court. In the decades since E.P. Royappa vs State of Tamil Nadu, when the Court added “arbitrariness” to the classification test under Article 14, equality has virtually stood still.
I suggest that this is in significant part because the rise of PIL, along with the expansion of Article 21 (an aspect that Bhuwania flags, but does not explore in great detail), has spared the Court the onerous task of developing a sophisticated vision of constitutional equality. Cases that might otherwise have come to the Court as equality cases (such as, for instance, Olga Tellis and Vishaka), and which would have required the Court to grapple with issues of structural and institutional disadvantage, instead came as PILs, which the Court dealt with by creating a behemoth out of Article 21, stipulating a limitless remedial power, and developing enforcement-oriented doctrines such as the continuing mandamus. After all, why take the trouble of developing a disciplined equality jurisprudence, when Article 21 is given an infinite substantive scope, and PIL allows for an equally infinite remedial scope?
It is not my suggestion that the Court would necessarily have risen to the challenge (Air India vs Nargesh Mirza should stand as a sobering reminder about what the Court actually did when faced with a core gender equality claim) – as it was not my suggestion that without the escape-hatch of guidelines, the Court would have developed a strong civil rights jurisprudence. However, it is my suggestion that PIL and Article 21 allowed the Court to avoid precisely those difficult questions about disadvantage and subordination that it would have been forced to otherwise confront.
Consequently, while Bhuwania’s arguments about PIL are well-taken, I would suggest that we need to go a little further: we need to critically examine the debilitating impact that PIL has had on the rest of our Part III jurisprudence.
The Sword that Smote
Not only has PIL had an stultifying impact on the development of our civil rights jurisprudence, but it is increasingly being used as a sword to cut down civil rights. This is an issue that I have written about repeatedly before, so I will only summarise it here. First, the massive expansion of Article 21 first resulted in a situation where that right became more or less a dead letter; now, however, it has been revived in another guise: to cut down the scope of other fundamental rights. The most glaring example of this is the recent Supreme Court judgment upholding criminal defamation, where the Court first read in a right to reputation under Article 21, and then used that to hold that a “balance” must be achieved with Article 19(1)(a). Typically, this “balance” entailed completely subordinating the guaranteed fundamental right under Article 19(1)(a) to the mythical, unenumerated right to “reputation” under Article 21.
However, there is another, even more insidious process under way, where PILs are being used to directly infringe fundamental rights. This has been most clearly visible in a number of freedom of expression cases in recent times, culminating in the ongoing national anthem proceedings before the Supreme Court. I think that Bhuwania’s core argument – that the vast, almost unchecked substantive and procedural power that PIL grants judges, makes it uniquely susceptible to the vagaries of judicial ideology, is particularly apposite in cases such as these. As Bhuwania argues, you cannot divide PILs into “good” and “bad” depending on the outcome: the very features that allow a “good” PIL to occur also ensure that you will have bad PILs. Similarly, the very features that allowed the Court to fashion wide-ranging remedies to ostensibly protect rights, now allow a differently-composed Court to use that judicial approach to cut down rights which would otherwise have been protected under the doctrine of separation of powers, or jurisdictional limits.
Where Do We Go From Here?
It is almost trite to say that PILs are here to stay. However much we may want to go back to the 1970s, it’s clear that it is far too late in the day for that. But here’s another question: do we actually want to go back to the 1970s? Do we actually want to put strict rules of locus standi back in place, and retreat into a legal formalism that comes with its own problems of exclusion and marginalisation?
To be fair to Bhuwania, this is not his proposed solution either. However, he does seem to argue that PIL comes to us as a package deal: take it all, warts and all, or abandon it for something better.
I’m not so sure. To substantiate my argument, let me point to a case that I think highlights the uniquely transformative potential of PIL. This is PUDR vs Union of India, a 1982 judgment handed down by one of Bhuwania’s chief villains (and with good reason), Justice Bhagwati. PUDR involved the non-implementation of labour laws on construction projects for the Asian Games and, in particular, the non-payment of minimum wages. PUDR’s petition was held to be maintainable because it satisfied the requirements of a PIL; after that, however, Justice Bhagwati engaged in a rigorous examination of the (nearly vestigial) Article 23 of the Constitution, and held that the phrase “forced labour” included not only physical coercion, but economic compulsion as well. The case was ultimately decided on this reading of the Article.
In my view, PUDR is a case that combined the locus relaxation of PILs, with rigorous constitutional reasoning, and a deep constitutional vision. At a conceptual level, if there is any case that justifies the existence of PILs, I think it is this one. Perhaps it is in PUDR that we have an answer to Bhuwania’s challenge: there are elements of PIL (such as allowing parties to approach the Court on behalf of those who genuinely cannot access it) that can be married to interpretive constitutional fidelity, which together craft a powerful constitutional jurisprudence. But perhaps the very fact that there has been only one PUDR reminds us of the force of Bhuwania’s challenge.
In closing, I only want to reiterate that Courting the People deserves to be – and probably will be – an instant classic. In decades of PIL literature, we finally have a book where “realities have taken the place of words… by striking aside the protective, concealing crown” – words such as “demosprudence”, “social action litigation”, and the crowned belief that PIL somehow continues to be – or was ever – the “last refuge of the oppressed and the bewildered.” This is a book that everyone should read.