Over the last ten days, the Indian Constitutional Law and Philosophy Blog has hosted a book discussion of Anuj Bhuwania’s new work on PIL, titled Courting the People: Public Interest Litigation in Post-Emergency India. The discussion has featured Aparna Chandra, Suhrith Parthasarathy, myself, and Anuj. Here is a round-up of the essays:
- A Radical Revision: An opening summary of the book, which aims to distil its core claim in the form of seven theses about PIL (the redundancy of the petitioner, the power of the amicus, no hearing of stakeholders, departure from the rules of evidence, unanticipated consequences of poly-centric disputes, incorrect conceptual framing of issues, and outcome-based reasoning).
- Swords, Shields, and Where Do We Go From Here?: In my analysis of the book, I argue that PIL adjudication has bled into civil rights jurisprudence, to the detriment both of core civil liberties, as well as the development of a meaningful equality jurisprudence. I also argue that PIL has now become a sword that is being used to cut down civil rights, whether on the whetstone of the Directive Principles, or broader ideas of public good. Nonetheless, I’m not sure whether Bhuwania has successfully demonstrated that certain aspects of PIL – such as loosened locus requirements – cannot be separated and welded into a form of jurisprudence that is both progressive, and maintains constitutional fidelity.
- Substance and Process: In her critique, Aparna Chandra argues that the judicial populism which Bhuwania locates at the core of PIL, exists across the board in the Supreme Court’s jurisprudence. Additionally, she points out that PIL was not simply a revolution in terms of judicial procedure, but equally a revolution in terms of substantive law – in particular, the vast expansion of Article 21 of the Constitution. Finally, she raises two methodological concerns: on the question of how and why PIL achieves the outcomes that they do, and on the applicability of John Hart Ely’s representation-reinforcement theory of judicial review, which Bhuwania endorses as a possible alternative to PIL jurisdiction.
- The Case for the Defence: In his essay, Suhrith Parthasarathy makes the important argument that, at least as far as the loosening of locus requirements goes, PIL has a strong textual foundation in the wording of Articles 32 and 226. Furthermore, in cases such as PUDR and Bandhua Mukti Morcha, where the State was engaged in blatant violations of rights, it is difficult to see what course of action was open to the Court apart from intervening; and indeed, a case like PUDR demonstrates that judicial intervention, through PILs, need not necessarily abandon fidelity to the Constitution. Parthasarathy nonetheless cautions us that these cases, while being founded on correct principles, nonetheless also exhibited disturbing signs with respect to the manner in which the judges framed the key questions at stake.
- The Author Responds: In the concluding essay, Bhuwania responds to our arguments. He points out that not only has the logic of PIL adjudication migrated to civil rights cases (e.g., the issuing of “guidelines”), but also, the Court rarely ends up adjudicating on the non-implementation of the guidelines that it itself has issued. Responding to Chandra’s critique, Bhuwania distinguishes between three modes of teleological (i.e., goal-based) arguments in the judicial discourse, and points out that what is unique about PIL teleology is not merely that the Court uses purposive arguments to creatively interpret the law, but invokes purpose to transform the judicial process itself. He argues, further, that the expansion of Article 21 cannot be separated from the rise of PIL, and that the two should be understood together. And lastly, responding to Parthasarathy’s textual argument about locus, Bhuwania concludes by distinguishing between “representative standing” and “citizen standing”, and argues that the loosening of locus should be limited only to the first class of cases.
It remains for me to thank all Aparna, Suhrith, and Anuj for taking out the time and making this book discussion a reality. This is an exciting time in Indian constitutional law, with new works of scholarship being published on a frequent basis. We hope to host more such discussions in the coming weeks and months.