The Meesha Judgment: Book Bans and the Supreme Court’s Dangerous Grandstanding

Tags

book bans, Jurisdiction, Public Interest Litigation, separation of powers

The present Chief Justice of India is no friend of free speech. He upheld the constitutionality of criminal defamation in a near-indecipherable judgment. He invented a new standard of obscenity for writings about “historically respectable personalities.” He forced cinema owners to play the national anthem before every film for more than a year through an “interim” (!) order, never explaining the constitutional authority for doing so, and relenting only when both his brother judges and the government urged that the order be recalled. He toyed with inventing a doctrine called “auto-block”, which would have required search engines to automatically block certain key-words, before finally deciding against it. He cooked up a phrase called “constitutional compassion” while issuing notice on the question of what politicians could or could not say with respect to an ongoing criminal investigation (the case was disposed of after the politician apologised). His judgments and orders have reflected not just a hostility towards the principle of freedom of expression, but – as I have written on this blog multiple times – a near-contemptuous disregard of precedent and the separation of powers in order to write this hostility into law.

There was some hope that, being caught up with Constitution Bench hearings since the start of his tenure as Chief Justice, Article 19(1)(a) would get through the last year or so before his retirement relatively unscathed. That hope has now been dashed with today’s judgment in the Meesha book ban case. In some ways, this judgment is worse than the ones that have preceded it, because of its insidious character: it is a sugar-coated poison-pill.

Meesha is a serialised novel written by the Malayalam author S. Hareesh. Its publication sparked a protest from a group that claimed that its dialogues were insulting towards temple-going women. Both the government and the civil society came to Hareesh’s support, and – as will become important later on in this essay – the government refused to ban the book. Meanwhile, however, a “public interest” petition was filed before the Supreme Court, asking for the book to be banned. Showing great alacrity, the Chief Justice allowed an “urgent mentioning” to take the case out of turn (July 31), his bench heard the arguments, asked for a translation of the “offending” passages, and reserved judgment (August 2), and the Chief Justice delivered the judgment today (September 5).

The Chief Justice begins his judgment by quoting from his own anti-free speech judgment in the “historically respectable personalities” case (paragraph 2), and spends the next thirty pages waxing eloquent about the importance of free expression. The judgment is peppered with phrases such as “pragmatic realism” (paragraph 5), “fertile faculties of the human mind”, “literary pusillanimity” and “abject obscenity” (?!) (paragraph 27), “the unwritten codes of maturity” (paragraph 28), “intellectual pusillanimity” (paragraph 33), “the passion of didactism” (paragraph 34), “pyramiding a superstructure without the infrastructure” (paragraph 35), “an intrusion to create sensation” (paragraph 36), “thematic subsidiary concepts” (paragraph 38), and “objective perceptibility” (paragraph 39). About ten paragraphs are spent discussing the contents of the book, and another three paragraphs on analysing whether there was actually something wrong with it. Louis Brandeis, Pablo Picasso, and Voltaire (incorrectly) are all name-checked. And the upshot is that the petition for banning is dismissed, with “no order as to costs.”

Now, what is so problematic about this, you may wonder. After all, the Court rejected the ban, and said all kinds of wonderful things about the freedom of speech. The problem is this: this case needed to have been dismissed at the outset, because under the Constitution, the Court has no power to ban books. But by issuing notice and deciding the case on merits, the Court has now given itself – and every High Court in the country – a new and dangerous power of censorship.

Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression. Article 19(2) authorises the “State” to impose reasonable restrictions upon this freedom, by “law”. There is some dispute over whether, for the purposes of Part III of the Constitution, the Court counts as “State”. However, there is no dispute over the fact that the word “law” refers only to Parliamentary law, or secondary legislation (such as statutory rules or regulations). It does not refer to judgments. This flows from the text of Article 13, the judgment of the six-judge bench of the Supreme Court in Kharak Singh v State of UP (not overruled on this point), and the judgment of the two-judge bench in Union of India v Naveen Jindal. What follows? It follows that, under our constitutional scheme, the Supreme Court cannot play censor. The Court does not have the power to restrict speech, censor films, ban books, and force people to say (or not to say) certain things. What the Court does have the power to do is to review State action that falls under the above categories, and test it for constitutionality.

This basic jurisdictional point was entirely missed by the Chief Justice in his ill-thought national anthem order, and many months on, no lessons have been learnt. Today’s judgment once again arrogates to the Court a power that the Constitution explicitly denies it. Not only is the judgment wrong in law, but by ignoring binding precedent on the point, it is also per incuriam.

This is not a formalist argument. Its importance can be gauged by looking at how the legal framework for banning books actually does work. Section 95 of the Code of Criminal Procedure states, in relevant part:

Where-

(a) any newspaper, or book, or

(b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860 ), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited…

The power to ban books, therefore, lies with the state government, and can be exercised only where, in the government’s view, certain specific sections of the IPC have been violated. Now, the remedy against the state government’s decision is provided for under Section 96:

Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub- section (1) of section 95.

Section 96(2) then goes on to state that an application under Section 96(1) must be mandatorily heard by a special bench of three judges.

The legal scheme, therefore, sets up three layers of statutory safeguards. The first is that it limits the offences for which books may be banned. Secondly, at the first instance, it leaves the decision in the hands of the government, and makes a provision for judicial review only if a book is banned. In other words, if the government elects not to ban a book, there is no judicial review against that decision (at least as per the legal scheme). And thirdly, if the government does ban a book, a special bench of the High Court is bound to review it in accordance with the law and the Constitution. At the heart of this scheme is the idea of the separation of powers: decisions restricting expression are to be taken by the government, and then reviewed by the Court for constitutionality.

Today’s judgment takes a sledgehammer to this carefully calibrated scheme in four distinct ways. First, it wipes out the separation of powers, and creates an entirely new book-banning authority – the court itself (this was exactly what the Bombay High Court did a few months ago with respect to the censorship of films, a decision that was appealed to the incoming CJI – who did nothing). Second, by making constant references to “defamation”, it also wipes out the careful limitation of the categories under which books can be banned. Section 95 of the CrPC makes no mention of defamation or Section 499 of the IPC (criminal defamation), thus making it clear that the government cannot ban a book on the ground that it is defamatory. But apparently, now, a Court can. Third, instead of limiting the right to review in case a book has been banned, it now allows just about anybody to move a “PIL” and ask for a book to be banned. This effectively opens up an entirely new legal window for authors to be relentlessly harassed (as if they were not facing enough problems in court already). And fourth – and most dangerous of all – it raises the distinct likelihood of the regular weaponisation of PILs for the purposes of book-banning, where the lottery of case assignments will entail that in many cases, such PILs may actually succeed.

The Chief Justice’s judgment, therefore, is wrong in law, wrong in the Constitution, and productive of great public mischief. He has simply arrogated to itself a power that it does not have, and shredded a carefully constructed legal framework of safeguards with respect to the banning of books.

It is worth pointing out (and it is not for the first time that I have made this argument on this blog) how we’ve gotten here. It is a three-letter answer, and it is called “PIL.” What began as a loosening only of locus standi requirements for a greater good has now become a free-for-all where concepts such as jurisdiction, maintainability, and the separation of powers have been so thoroughly discredited, that they now don’t even feature on the radar when it comes to arguments and judgments. The upshot of this is that these concepts, long demonised by proponents of PIL as remnants of “Anglo-Saxon (!) jurisprudence”, but which stood between fundamental rights and judicial autocracy, have been washed away. And the result is plain for all to see: PILs are now at the forefront of lopping off fundamental rights.

It is also worthwhile to note that the road the Chief Justice was going down was more than evident the day that this case was hurriedly listed out of turn, and the day when his bench began hearing it on merits. That was the time for people to question how it was that the Court was doing what it was doing. How was this PIL maintainable? How did the Court have jurisdiction in an Article 32 petition asking for a book to be banned? What “appropriate writ” could it possibly issue? Instead, there was absolute silence. And that is perhaps the most profoundly depressing aspect of the situation that we find ourselves in today: the sinking feeling that the ship has sailed so far that there is no point to even raising these questions anymore. It is no more than a cry in the wilderness.

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Tags

criminal law, evidence, investigations, judge loya, Public Interest Litigation

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere. I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply “technicalities of procedure.” They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent. For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard  (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.

 

 

 

 

 

What is the Role of a Judge in a Polyvocal Court?

Tags

freedom of speech, Public Interest Litigation, supreme court

For a while now, commentators have remarked about the “polyvocal” character of the Indian Supreme Court. The Court comprises of 28 judges who sit, for the most part, in benches of two (or at most, three). For this reason, the Supreme Court – it is argued – is better thought of not as a single “Court”, but as many different courts of equal authority, who may often speak with different – or even opposed – voices on the same issue (consider, for instance, that time in the late 2000s, when Justices Sinha and Pasayat were handing down what were virtually duelling judgments on the death penalty). This, in turn, leads to patchwork jurisprudence, which is internally inconsistent, and invariably influenced by judicial personalities to a degree that is probably far greater than in other jurisdictions, where judges sit en banc, or at least, in a substantially larger number.

However, for all the problems of inconsistency (and even incoherence), the fact remains that any judgment handed down by a judge carries the authority of the Supreme Court of India. That judgment speaks for the Court, and by extension, for the other twenty-six judges not party to the judgment.

Keeping this in mind, I want to focus on an issue that is separate from the problems of institutional incoherence and contradictory jurisprudence, but which is becoming increasingly pressing. The polyvocal character of the Supreme Court would, under normal circumstances, be constrained by two centripetal forces: a respect for precedent – including judgments delivered by Constitution Benches from a time when two-judge benches were the exception rather than the norm – and the limited scope of the Court’s jurisdiction (i.e., the Court can only rule upon issues that are brought before it, and which concern questions of law). Institutional inconsistency, therefore, would remain a bounded inconsistency, both in terms of its content, and in terms of its subject matter.

In my view, at this point of time, both these centripetal forces (after having been consistently undermined for the last three decades, both in the Court and in the academy) are virtually non-existent. Constitution Bench precedents are regularly ignored, or distinguished on dubious bases, and the scope of PIL has now become so vast that the idea of a limit on the Court’s jurisdiction is almost laughable. This, effectively, concentrates great power in the hands of individual judges to shape or mould areas of law in a manner that is simply not contemplated in a functioning legal system.

To understand why this is a problem in the specific context of a polyvocal court, let us consider what Justice Dipak Misra (the second-most senior judge of the Court, and scheduled to become Chief Justice of India this August) has done to Article 19(1)(a) of the Constitution. In Devidas Tuljapurkar, he ignored fifty years of precedent and invented out of thin air a new standard of obscenity applicable only to “historically respectable personalities.” In Subramanian Swamy, he upheld the constitutionality of criminal defamation as it stood, ignored the conflict that the ruling set up with the coordinate bench judgment in R. Rajagopal vs State of TN, concerning the different standards in civil and criminal defamation law, and invented a mythical doctrine of “constitutional fraternity” to justify this. In his interim orders in the national anthem case, he has ignored the binding judgments of nine judges in Naresh Mirajkar and five judges in Rupa Ashok Hurra, as well as the basics of separation of powers, and has made the playing of the national anthem compulsory in cinemas before every film. In his interim orders in Sabu Mathew George, he has passed interim orders on the “auto-blocking” of keywords for sex determination, supposedly justified under the PCPNDT Act, but without any consideration of the 19(1)(a) issues at play (including those of intermediary liability). And in the Azam Khan case, which he is presently hearing, he has framed issues on whether political figures can be restrained from commenting on rape allegations, on the basis of another invented doctrine labeled “constitutional compassion” (and also goes against a line of judgments starting with Sakal Papers and ending with Shreya Singhal, which have made it clear that freedom of speech can be restricted only on the grounds listed in Article 19(2)). Out of the five cases mentioned above, four have come to the Court as PILs.

These five cases make it clear that Justice Dipak Misra does not consider the freedom of speech to be of much value. That is his personal prerogative; however, when in case after case, brought to the Court through flimsy PILs, he passes judgments that place vast swathes of speech off limits, through the invention of new doctrines completely untethered from constitutional text and at odds with clear precedent, it becomes a serious problem.

Now, in ordinary circumstances, to implement his views on free speech (or the lack thereof), Justice Misra would have had to convince a bench of five or seven judges to agree with him. However, as the senior judge in a two judge bench, he only has to convince one judge – and anyone who has spent any time in the Supreme Court knows that puisne judges rarely assert themselves against senior judges (there are exceptions, of course).

When, therefore, you combine the following features: decisions being rendered effectively by one individual (who is assigned these cases based on roster determinations by another individual, the Chief Justice), the declining importance of precedent, the evisceration of subject matter and jurisdictional limits, the fact that Article 145(3) (which requires that issues of substantial constitutional importance be heard by a bench of at least five judges) is more or less a dead letter (because the decision to refer is made by the judge hearing the case in the first place), and the predominance of PIL (which, as Anuj Bhuwania points out in his book, often amounts to the Court choosing a petitioner as much as it does a petitioner choosing the Court), you get the following result: the power to shape crucial areas of law, including fundamental rights, which impact peoples’ lives, rests in the hands of single individuals; and every institutional feature that might place a check upon those individuals’ predilections becoming the law of the land has been rendered virtually non-existent. The most basic and most important feature about a constitutional court – that its decisions ought to be rendered through a collegial process, involving give and take and compromise between judges of differing views – has completely gone.

This takes us to a crucial question, which arises simply because of what the Court has become: what about the responsibility of the other twenty-six judges who sit on the Supreme Court? For example, I suspect – and indeed, I would hope – that many of them have strongly different views on the role of free speech in a constitutional democracy, or at the very least, that they disapprove of the use of PILs to advance an anti-free speech jurisprudence that runs counter to precedent, text, and the separation of powers. In such a situation, it seems particularly problematic that a single individual (by virtue of the CJI-determined roster – and the concentration of power in the hands of the CJI will be the subject of a further post) gets to speak for the Court on issues of such great constitutional importance.

The Court as a whole, therefore, has the responsibility of evolving a mechanism that prevents this. Perhaps issues involving any article of the Constitution must compulsorily be sent to a five-judge bench, regardless of the referring judge’s opinion. Perhaps in issues involving constitutional articles, judges not on the two-judge bench should be able to write dissenting notes on the exposition of law involved – a radical suggestion, but this is a Court operating in an entirely unprecedented context. Whatever the solution, however, it is important to stress that the other twenty-six judges have to bear a substantial share of the responsibility: we cannot employ the fiction of “many different Supreme Courts” to absolve judges who, as part of the institution, acquiesce to judicial conduct and jurisprudence that they find contrary to the Constitution. Inaction must imply agreement.

I do not suggest that either of the two potential solutions outlined above will work; at the very least, though, this is a conversation that we must now begin to have.

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ — Roundup

Tags

book discussion, Public Interest Litigation

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:

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – V: The Author Responds

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book discussion, Public Interest Litigation

(We close our discussion of Anuj Bhuwania’s Courting the People: Public Interest Litigation in Post-Emergency India, with a response by the author).

—

I want to begin with a note of sincere thanks to Gautam Bhatia for initiating this intense discussion on my recently published book ‘Courting The People’ on this wonderful blog, which has become such a useful resource for many of us. As an author, I could not have asked for more. To have three readers reading closely and commenting carefully on a book in quick time is really overwhelming, especially when they are of the calibre of Aparna Chandra, Suhrith Parthasarathy and Gautam Bhatia. I feel immensely fortunate to have them as my interlocutors here.

—

Addressing Gautam Bhatia’s critique

Bhatia began the discussion with an excellent introduction to the themes of the book, providing a much better summary than I myself could have managed. In his critique then, he makes some important points that I will try to address here.

Paternalism vs Populism

I agree with Bhatia that paternalism in the Indian higher judiciary, where the judges claim prior superior knowledge of the Indian people and their strange proclivities and tendencies, dates from before the PIL era. But since the birth of PIL, the court also manages to speak for the people, not just of the people.  The former is classic populism, the latter paternalism— an important difference, though the latter is, of course, alive and well. The former tends to rely on a rhetoric of suffering, the latter on the narratives of the insufficient modernity of Indians. These two tendencies get interestingly deployed together in the Bhopal disaster judgments of 1989-91. The victims’ suffering becomes the pretext to justify the unseemly haste of settlement, while at the same time the suffering masses don’t really need to be heard in their own cause, as they are irresponsible and incompetent. (For instance, the court justified the expropriation of the victims’ right to legal redress thus: “It is necessary for the State to ensure the fundamental rights in conjunction with the Directive Principles of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further.”)

Earlier, the judges relied on their own sociological insights (with colonial antecedents) about the Indian people and thereby came to paternalistic conclusions regarding the need for censorship, or trusted their own sastric knowledge even to attempt a task as difficult as defining Hinduism (Sastri Yagnapurushadji vs Muldas). But I would not compare Justice Hidayatullah or Justice Gajendragadkar to a Justice Bhagwati or a Justice Dipak Misra, in terms of looseness of legal language. The ability to ground clearly extra-legal arguments and facts in legal terms has certainly shown a decline.

The Migration of PIL Logic to Civil Liberties Cases

On the tendency of the post-PIL appellate courts to issue guidelines, Bhatia has discussed how they can become a convenient copout in civil liberties cases. To add to his points on this issue, as I have also argued in Chapter 1 of the book,  very rarely do these guidelines travel from the court’s legislative mode to its adjudicative mode: i.e., hardly ever do the actual violations of these guidelines reach the court again in its adjudicative avatar. Hardly ever does the court dealt with evidence of violations of its guidelines or pronounce on reliefs for them. They are another instance of (judicial) legislations without any infrastructure for their implementation, rights without remedies.

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On Aparna Chandra’s review

Aparna Chandra has written a masterly review of my book. In order to address some of her criticism, I have been forced to think more carefully about some of the points I have made

Understanding the teleological mode

I completely agree with Chandra’s broad point, i.e., that the teleological mode of reasoning has taken deep roots in Indian constitutional interpretation. I would suggest that this entrenchment of teleological judicial reasoning is the fruit of Article 31C’s poisonous tree. While the innovation of Article 31B (and the 9th Schedule) is justly infamous for trying to protect the Constitution from itself, at least it was a blanket provision that left the rest of the Constitution untouched. The legacy of Article 31C, which aimed to restrict judicial review of all laws that ‘claimed’ to implement directive principles, and the line of thought it represents, has been far more insidious, and has infected Indian constitutional culture itself.  We often forget that the argument of ‘committed judiciary’ was the requirement of a commitment to the Directive Principles. And the official aim of the 42nd amendment was to give Directive Principles precedence over Fundamental Rights.  Over time, this mode of argumentation has infected Indian legal academia as well. It has become our common sense approach to legal interpretation: whether it is to evaluate a case or a statute.

In Chapter 4 of the book, I examine in some detail Justice Bhagwati’s talisman (as I call it) in which he suggests that judges should be teleologically inclined in their activism. The normativisation of such judicial behavior is in one way the culmination of the committed judiciary argument. I draw parallels between Mohan Kumaramanglam’s 1970s call for a committed judiciary,  and Justice Bhagwati’s reasoning in his 1985 article, but with a key difference. While the 1970s discourse required judges to give the legislature carte blanche so as to bring about the social revolution legislatively through the Directive Principles, the 1980s version, with PIL, needed the judges to be the vanguard.

As a corollary to this difference between the two approaches, there are two different ways in which the Courts may be teleological: one is the specific mandate of Article 31C’s logic [the1970s version], which protects statutes professing certain aims from judicial review. This immunization approach continues today and has become entrenched in constitutional cases, where the court often decides that the goals of a statute can trump fundamental rights. The goals could be fighting terrorism in Kartar Singh vs State of Punjab, controlling population in Javed vs State of Haryana, , or the desirability of sanitation in Rajbala vs State of Haryana.

The second approach is when the logic of Article 31C, and the concomitant discourse of committed judiciary, requires the judges to act teleologically, not just in immunizing statutes in cases, but in furthering the cause of social revolution through the expansion of judicial power itself. As Justice Bhagwati would say, the aim should be juristic activism to bring about social change. Now this itself can typically be done in 2 ways: interpreting legal doctrine creatively but also in transforming judicial process itself. The former in this case would be to read all kind of directive principles or international law into Article 21, or e.g,, creating the notion of ‘absolute liability’ ex nihilo (the quality of hermeneutic labour done by judges being of no concern of course.) That is, while one aspect of judicial teleological behaviour in this expansive sense still relates to statutory interpretation (though without much regard for the text of the Constitution or basic legal argumentation), the second is with regard to how to go about judicial proceedings themselves, which the radical departures of PIL make possible. At this point, all three versions of the teleological approach can be observed within the Indian judicial behavior: the immunization approach espoused in 1970s sits comfortably with the expansion of judicial power through the excesses of Article 21, as well as the annihilation of procedure achieved through PIL.

Throughout the book, I focus on the latter: i.e., PIL cases, and how they have set the pace for the negation of procedure. This form of laxity in judicial process has bled from PIL to even non-PIL cases. PIL cases are no longer entirely exceptional in this regard. In my conclusion I give the example of a non-PIL civil dispute, albeit a particularly famous one: the judgment by the Lucknow bench on the Babri Masjid/ Ram Janmabhoomi dispute to show that this mode of judicial behaviour is now found across jurisdictions. However, at one point in chapter 1, I suggest that the delegitimisation of procedure in PIL cases and judicial process more generally (my primary focus in the book) achieved through teleological reasoning of the third kind has perhaps fed into the concomitant discourse of the Courts giving short shrift to procedural safeguards (or the absence thereof) in repressive criminal statutes, when it consistently upholds them (the teleological approach of the first kind, ie the  immunization approach), accepting curtailment of judicial oversight in criminal inverstigations. In her review, Chandra takes issue with this, pointing out that it need not flow directly from PIL. Admittedly, in this instance, perhaps I have jumped from correlation to causation, and if so, then mea culpa. However, the coincidence of the two developments occurring simultaneously made the resemblance uncanny.

Transformations in Substantive law

Chandra has argued that changes in substantive law since the 1970s are important to the history of  PIL. While I do not deny that the so-called ‘Article 21 jurisprudence’ (one can instead use a colloquialism and call it the ‘Raita of Article 21’) has played a crucial role in this history, its extreme expandability since the early 80s can also conversely be read as a byproduct of the PIL (non)procedure. The need for ratiocination in judicial prose and a basic fidelity to law are themselves procedural principles as well. The rise of PIL and its attack on every other aspect of judicial procedure has also meant that minimal hermeneutic labour in the form of judicial justification is no longer at a premium. I would not belabor this “substance vs procedure” point but I do believe that PIL is a particularly important part of this story, because it enables the court to change its process itself. The new goal-oriented approach finds procedure as merely  “a handmaiden to justice” which can be done away with in the name of substantive justice. The instances I look at in Chapter 2 and 3, where a cause of action in a writ proceeding can change 9 times, where the Court can repeatedly take decisions without hearing affected parties, where it creates its own enforcement machinery – all illustrate the powers that the PIL court can operationalize. This is not just about judicial logic, but about the entire judicial process, from the initiation of a case to the obtaining and weighing of evidence, even the implementation of its decision. All this can now be shortchanged, thanks to PIL. The rhetoric of immediacy (i.e., the mediation of procedure as no longer essential to justice) ties up with that of teleological reasoning in the rise of PIL.

Why process?

Chandra helps explain why I think process is so important. Just to add to that: if fundamental tenets of judicial process are not being followed, it is a moot question if the proceedings can be  called adjudication at all. I think J. Pathak in Bandhua Mukti Murcha vs Union of India makes this point very well:

“Whatever the  procedure adopted by the court it  must  be procedure known to judicial  tenets and characteristic of a judicial  proceeding.  There are  methods  and avenues of procuring material  available to  executive and legislative agencies and  often employed  by them  for the efficient and effective discharge  of the tasks before them. Not all those methods and avenues are  available to the Court. The Court must ever  remind itself that one of the indicia identifying it as  a Court is the nature and character of the procedure adopted by  it in  determining a  controversy. It is in that sense limited in the  evolution of procedures pursued by it in the process of  an adjudication,  and in  the grant   and execution of  the relief.  Legal jurisprudence     has in its historical development identified  certain fundamental principles which form the  essential constituents of judicial procedure. They are employed in every     judicial proceeding, and constitute the basic  infrastructure along     whose    chamacts  flows     the power of  the Court  in the process of adjudication.”

On selective enforcement

Chandra’s point about efficacy of enforcement of certain PIL cases over other PIL cases is a very important one. I try to give the example of ‘the Sealing case,’ one of the avatars of WP 4677/1985, as another instance where the court’s attempt at grand social engineering of Delhi ultimately fails.  But the Court did pursue this particular case with a lot more tenacity than the Vishaka and the Aadhaar cases. In the ‘Sealing Case’, the court repeatedly took up contempt cases against non-enforcement and stayed governmental attempts at diluting its orders. In the Aadhaar case, the court has been not so proactive. On the other hand, enforcing Vishaka is in the realm of pronouncing an ambitious new legislative norm, without having the enforcement mechanism.

Why rely on Ely

Lastly, on the arguments of John Hart Ely:I would argue that Ely’s representation-reinforcement theory of judicial review applies to India. It provides the most persuasive account of how judicial review (which is, by definition, counter-majoritarian), can potentially perform an important democratic function.The preference for judicial populism over judicial review by Indian courts has meant an abandonment of this democratic function, as was evident most clearly in Suresh Kumar Koushal vs Naz Foundation. And also, to my mind, we need to be more skeptical of the interventionist conception of the State, expounded in the Directive Principles. The romance of the vanguardist Indian State, tasked with reforming the unruly Indian social milieu, which also forms the ideological basis of PIL, needs to be swiftly abandoned. There is an acute need to see how dangerously fascistic concepts we so easily use in India, such as ‘social engineering’, can be.

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On Suhrith Parthasarathy’s intervention

Locus Standi

Parthasarathy makes a beautifully argued point that a too narrow reading of locus standi would go against the express provisions of Article 32 and Article 226. I am in full agreement with his argument, but I do think that the other extreme that we have been saddled with because of PIL, i.e. the complete dilution of locus standi, is not the answer either. Instead a way forward that I would suggest is that we try to analytically distinguish ‘representative standing’ from ‘citizen standing’.

An insistence on ‘representative standing’ (either as associational standing in cases of associations/ social movements or secondly, even individuals with some relation to the victims themselves, extrapolating the logic of habeas corpus where the detained person for some reason cannot come to court) should be preserved. The Mumbai Kamgar Sabha Case would be  a simple example of this form of standing. Besides PUDR and Bandhua Mukti Morcha, which Parthasarathy discusses, other examples of such representative petitioners from recent litigation would be Safai Karamchari Andolan and Narmada Bachao Andolan. In the second instance, representative standing could be thought of as similar to a class-action suit, except with a non-class member representing the larger group. Examples of this are Nandini Sundar case and Olga Tellis, where there were co-petitioners who were directly affected. These cases got named after the non-class petitioners, even though class members were petitioners too.

It would be useful to distinguish these instances from ‘citizen standing,’ which allows any citizen to file a petition on an issue completely unconnected with her own life and work. A complete dilution of locus standi is precisely the reason why the Judge can reduce the Petitioner to an informant (as if she is just filing an FIR), and make her redundant without any major loss to the process of the litigation. In other words, the Judge sees no harm in expropriating the litigation from such a petitioner. Many of the processual problems I discuss emerge from this. Reconceptualising locus standi this way could be part of thinking of an alternative. And yes, Justice Pathak’s opinion in Bandhua Mukti Morcha reminds us of what could have been, and is still worth returning to.

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – IV: Suhrith Parthasarathy on the Case for the Defence

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book discussion, Public Interest Litigation

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, with an essay by Suhrith Parthasarathy, a Chennai-based lawyer and writer).

—

As both Gautam Bhatia and Aparna Chandra have recounted here, Anuj Bhuwania’s book, “Courting the People: Public Interest Litigation in Post Emergency India,” is an important and unique piece of work, in that it questions not merely the judiciary’s abuse of the PIL power, but also the very conferment of the PIL jurisdiction on the high courts and the Supreme Court of India. Bhuwania’s argument is hugely compelling, and is difficult to counter, particularly on the back of constantly mounting evidence which shows us how the PIL is often a tool that is malleable to the individual predilections of judges, and the campaigns they seek to further.

However, I have two primary concerns with this thesis, which I shall explicate presently: the first is that, textually, both Articles 32 and 226, which respectively guarantee the rights to approach the Supreme Court and the high courts for enforcement of fundamental rights, do not support a blanket prohibition against actions in public interest. The second is the Supreme Court’s own historical record, which contains numerous instances when the court has had little choice but to interfere under Article 32, faced, as it has been, with what were often appalling infractions of basic civil and socio-economic rights. However, it must also be pointed out that even in these cases which demanded interference, especially in the late 1970s and early 1980s, the cause of PILs would have been better served had the court, in exercising the power, not only restrained the rhetorical flourish of its judgments, but also managed to maintain, in the process, a greater, basic fidelity to the procedures of an adversarial process.

PILs: The Textual Defence

Let’s consider, at first, the wordings of Articles 32 and 226. Article 32(1) states: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Article 226(1) states, “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

What’s notable is that neither of these articles places any limitations on the category of persons entitled to approach the court. In the case of Article 32, it simply requires the petitioner to show that a fundamental right guaranteed under Part III has been violated—this violation can quite conceivably be of a right possessed by a person distinct from the petitioner. Similarly, Article 226 also does not specify that only persons whose rights have been affected can approach the high courts. What’s more, Article 32 goes a step further in granting leeway to petitioners to approach the Supreme Court by way of “appropriate proceedings.” Were we to read these provisions literally it becomes rather difficult to justify strict rules of locus standi. In fact, were the Supreme Court, for example, to reject a petition purely on the ground that the petitioner has no personal interest in the case, when a fundamental right has been shown to be violated, it might well be a dismissal contrary to the bare text and meaning of Article 32.

Therefore, in many ways, the loosening of principles of standing that occurred over the course of the late 1970s and 1980s, is in consonance with a proper, textual reading of Articles 32 and 226. Further, a look into Constituent Assembly’s debates on these articles also does not show us that the drafters intended to place restrictions on locus standi in a manner that required petitioners to be personally affected. Now, this is not to suggest that the court is incapable of framing rules that regulate the principles of standing. The words “appropriate proceeding” in Article 32, for instance, gives the court the latitude to regulate principles of locus standi in a manner consistent with the broader requirements of justice. That the court has failed to do so in a systematic and coherent manner, however, has been a failing that has had serious repercussions.

As Bhuwania argues, this lack of rigour in the Supreme Court’s PIL jurisprudence, which is only made worse by the court’s almost declamatory language, is evident almost right from the inception of PILs. For example, take one of the earliest instances of the Supreme Court’s exercise of what it itself appeared to describe as a public interest action: the 1976 judgment in Mumbai Kamgar Sabha, Bombay vs M/S Abdulbhai Faizullabhai. Here, the court was concerned with an appeal against an award made by an Industrial Tribunal where a demand for bonus by employees working for various small hardware businesses in Navi Mumbai was rejected. One of the defences that the Respondent took in the Supreme Court was that the employees had been represented by a Trade Union, and, this body lacked the standing to bring the appeal on behalf of the workers. “No right of the Union qua Union was involved,” the Respondent contended, “and the real disputants were the workers.”

To this, Krishna Iyer, J., who was part of the two-judge bench hearing the appeals, responded thus: “But a bare reading of the petition, the description of parties, the grounds urged and grievances aired, leaves us in no doubt that the battle is between the workers and employers and the Union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array.” As a matter of technicality, he conceded that the Union could not be a party, but, this, he said, was merely an infelicity in the drafting, for it was clear that it was the workmen who were the real parties to the dispute. This ordinarily ought to have been enough for the court to overcome any objections on the maintainability of the appeal—the workers, as Krishna Iyer, J., had pointed out were, in fact, before the court, but were merely represented by a Union.

Unfortunately, however, the court did not stop here. And this is where the problems begin. “Test litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural, shortcomings,” Krishna Iyer, J., wrote. “Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latté dinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.”

Now, the court was unconcerned here with Article 226, and any observations made on the procedural requirements of standing to approach a high court were simply irrelevant to the facts of the case. What’s more, the court was actually concerned with whether the workers individually had a right to seek bonus; that they may have been collectively represented by a Union did not negate the fact that their individual rights had nonetheless to be determined. In framing the issue, though, as one which involved an airing of collective grievance, as opposed to one that involved an assertion of individual rights, Krishna Iyer, J. ended up upholding an argument quite different to the one made by the Trade Union.

PILs: On the Necessity of Judicial Intervention

There are similar misgivings with almost all of the early cases that are often described as heralding a movement towards public interest litigation. It’s quite conceivable that each of those cases may well have been amenable to the Supreme Court’s jurisdiction without otherwise compromising on the basic principles of standing. For instance,Gautam Bhatia in his review of Bhuwania’s book points to the 1982 judgment of the Supreme Court in PUDR vs Union of India, as an exemplar of what PIL can mean, when applied correctly.

Here, the court was faced with a report that pointed out a flagrant violation of several labour laws in relation to workmen employed in the construction work of various projects connected with the Asian Games. Article 32, as P.N. Bhagwati, J. pointed out in his judgment, only required that the petitioner show a violation of a fundamental right. What’s more, as I have argued above, the provision doesn’t, in and of itself, prohibit a person from approaching the court in the interest of fundamental rights of any other individual or any other distressed groups of people. In this case, the petitioner’s report quite clearly, in the court’s opinion, presented evidence of what constituted a form of forced labour in violation of Article 23. Now, it was up to the Union of India to disprove that the labourers employed for the projects connected with the Asian Games weren’t being employed in a manner that violated Article 23. The Union, though, didn’t quite dispute the basic findings in the petitioner’s report. Instead, it argued by placing emphasis, as the judgment states, on the word ‘similar’, used in Article 23, contending that it is not every form of forced labour which is prohibited by the provision but only such form of forced labour as is similar to ‘begar’ and since ‘begar’ means labour or service which a person is forced to give with-out receiving any remuneration for it. Article 23, in its argument, was limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words ‘other similar forms of forced labour.’ Given the arguments adduced the court’s task was to simply answer a legal question: whether Article 23 prohibited all forms of forced labour or merely those forms that were similar to “begar.” This, the court did effectively.

But, once again, much of the court’s good work was undone by its oratorical excesses. Bhuwania takes us to one such statement, where the court was quick to stress on a need to loosen procedural standings on a whole, and, more significantly, on a need to invent new strategies to provide access to large groups of people:

“We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief,” wrote PN Bhagwati, J. “Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed.”

Thus, once again, the court was framing the debate in terms of collective rights. This, in my submission, was where the court went wrong. This was a case much like Mumbai Kamgar Sabha, a case where individual rights of workers were being contravened. PUDR, as Bhatia has argued, largely represents a case where PIL was put to good use. But the court could have achieved its ends through a narrower holding. It simply had to read Article 32 in a manner close to its text, to find that PUDR did, in fact, possess the locus standi to approach the court for a violation of the fundamental rights of the workers. This required no specific loosening of the standard.

“Appropriate Proceedings”

We may now look at one more example, a 1984 case, which Bhuwania refers to in detail: Bandhua Mukti Morcha v. Union of India. This was a case initiated by an organisation dedicated to ending bonded labour. As Bhuwania points out, the judgment rendered by PN Bhagwati, J., in the case is riddled with his “standard trope of Indian difference.” That “in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights…would become a mere rope of sand so far as the large masses of the people in this country are concerned.”

But while Bhagwati, J., may have been wrong on this count, as is pointed out in a concurring judgment in the same case by Pathak, J., he did also seek to defend the court’s intervention based on a textual reading of Article 32. The provision, he pointed out, confers the right to move the Supreme Court for the enforcement of any fundamental right, but it neither restricts movement of the court to any category of persons, nor does it place a restriction on the manner of the proceedings: “It is clear on the plain language of Clause (1) of Article 32 that whenever there is a violation of a fundamental right, anyone can move the Supreme Court for enforcement of such fundamental right,” wrote Bhagwati, J. “…again Clause (1) of Article 32 says that the Supreme Court can be moved for enforcement of a fundamental right by any ‘appropriate’ proceeding.’ There is no limitation in regard to the kind of proceeding envisaged in Clause (1) of Article 32 except that the proceeding must be ‘appropriate’ and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right.”

As a matter of pure textual interpretation of Article 32, as I sought to show earlier, it is difficult to argue against Bhagwati, J.’s view. Had he dismissed the petitioner’s approach purely on the ground that he or she doesn’t have the standing to maintain an action for the violation of a fundamental right, the dismissal would have run directly counter to Article 32’s wording. This is not to say that the court cannot place its own international restrictions on when to interfere. But any strict rule of standing would simply be impermissible as a matter of constitutional law.

Here, what Pathak, J. said in his concurring opinion in Bandhua Mukti Morcha is particularly instructive. He expressly recognised that Article 32 does not specifically indicate who can move the court when a fundamental right is violation and, therefore, in the absence of a confining provision, it was “plain that a petitioner may be anyone in whom the law recognises a standing to maintain an action of such nature.” But as to what constitutes an “appropriate proceeding,” Pathak, J. was more circumspect. While he recognised that it was indeed time for the law to enlarge the doctrine of standing to permit actions by persons in public interest on behalf of groups otherwise incapable of representing themselves, public interest litigation, he held, did not necessarily call for a system that altogether loosens the fundamental requirements of a properly adversarial process. It similarly also did not a call for a system where the relief provided by the court is beyond what it might provide in a regular writ proceeding.

A public interest litigation, Pathak, J. held, did permit a greater degree of flexibility in comparison to a traditional private law litigation, but any such procedure adopted by the court must nonetheless confirm to basic judicial tenets characteristic of a proper proceeding. What he meant by this was that although a defined pattern of procedure might be hard to lay down, the court must still follow the procedure laid down by any statute that prescribes the procedure for the proceeding concerned. Where the court devises any supplementary procedure, “there can be no deviation from the principles of natural justice and other well accepted procedural norms characteristic of a judicial proceeding,” he wrote. “They constitute an entire code of general principles of procedure, tried and proven and followed by the sanctity of common and consistent acceptance during long years of the historical development of the law. The general principles of law, to which reference is made here, command the confidence, not merely of the Judge and the lawyer and the parties to the litigation, but supply that basic credibility to the judicial proceeding which strengthens public faith in the Rule of Law. They are rules rooted in reason and fairplay, and their governance guarantees a just disposition of the case. The court should be wary of suggestions favouring novel procedures in cases, where accepted procedural rules will suffice.”

Bhuwania is entirely correct in pointing out that it was ultimately Bhagwati, J’s judgment that carried the day, and Pathak, J.’s opinion remains just that, an opinion. But this doesn’t take away from the fact that Pathak, J. may have been correct as a matter of law on how a PIL has to be treated: that a petition cannot be dismissed purely on the ground that a petitioner lacks standing, and that where a violation of a fundamental right is shown, the court has little choice but to intervene. But this intervention must partake a proper procedure, and, any relief that is ultimately awarded must also be tailored into a proper judicial relief.

Conclusion: A Partial Defence

There are many genuine, legitimate areas in which a PIL serves as the only recourse available to check unconstitutional executive or legislative actions. But it is tragically disappointing that the court ultimately chose to follow the pattern shaped by Bhagwati, J. Bhuwania shows in substantial detail (as Bhatia illustrated in his first post) that PILs have led to a series of pitfalls, and have proved hugely damaging to the quality of justice delivery in the country. But this, in my submission, isn’t as much a problem with PILs per se as it is with the larger lack of accountability that the judiciary enjoys. Here, I agree with Chandra, who argues that the “judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board.” The misuse of the PIL has only been accentuated by the unaccountability of the judiciary; the general lack of integrity in decision making, of maintain a fidelity to constitutional values and principles, is a problem as much in the Supreme Court’s appellate jurisdiction as it is in its exercise of PIL power.

Any solution, therefore, has to go deeper. Regrettably, attempts made to alter the system of appointing judges have thus far failed. In the place of proper democratic constraints on the judiciary, what we have instead are anti-constitutional checks on judicial power: post-retirement postings, for example. Unless these larger issues are met effectively, it’s difficult to imagine a proper reform of the PIL process. To understand why we need this reform, though, there is no better place to begin than by reading Bhuwania’s book.

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – III: Aparna Chandra on Substance and Process

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book discussion, Public Interest Litigation

(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, and then a critique. In this essay, Professor Aparna Chandra explores some of the themes of the book)

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Anuj Bhuwania’s “Courting the People” is a book that needed to be written and one that should be widely read and debated. Bhuwania pulls no punches and offers a stringent critique of the dominant hagiographic narratives around PILs and its dramatis personae. He takes issue with the canonical view that PIL was a force for the good in its inaugural moment but has since been hijacked by those who are not in tune with its original philosophy; thus leading to problematic outcomes. Instead, Bhuwania argues that the PIL jurisdiction is problematic per se, both in its ideological orientation as well as its processual elements.

On Bhuwania’s account, in its early years, the Court had positioned itself as a checks and balances institution, oriented towards holding the state accountable for overstepping constitutional bounds. However, beginning in the late 1970s, the Court responded to sustained attacks on its legitimacy from populist political discourses by acquiescing in the demand for a “committed judiciary” that works alongside an interventionist government to advance the goals of the Constitution. The Court re-conceptualized its role as one that was not only a partner, but a leader of the social revolution envisaged in the Constitution. PILs emerged as part of this ideological move by the judiciary. To the extent that the state’s actions were advancing constitutional goals (predominantly those in Part IV of the Constitution), the Court would support the state. Where the state fell short, either through inaction, indifference, or otherwise, the Court would step in to push the state in the right direction.

The ideological shift in the Court’s role conception was accompanied by procedural moves that facilitated this new role. This procedural shift views procedures as unnecessary hurdles and mere technicalities that should be set aside in favour of substantively just outcomes in tune with the goals of the Constitution. Often captured by the phrase “procedure is the handmaiden of justice” the idea here is that procedures are useful only to the extent that they help the Court in achieving just outcomes – otherwise procedures can and should be done away with.

Bhuwania takes issue with both these shifts. He argues that the ideological grounding and procedural laxity of PILs have allowed judges to run amok and encode their biases and preferences, not only into norms, but into the lived and material realities of vast sections of the population. The problem of PILs is not the case of a few bad apples, but a more systemic issue with the kinds of politics and material outcomes it makes possible. He takes us through examples drawn from PILs relating to urban governance in Delhi to demonstrate how the PIL process vests such large and unchecked powers in courts.

Bhuwania provides a compelling critique of the PIL jurisdiction, and one that I agree with. In fact, as I argue below, I believe that Bhuwania does not go far enough in his critique. I also raise certain concerns with Bhuwania’s methodology, as a prompt to think about how best to understand the PIL jurisdiction and the appropriate conception of the judicial role.

Populism Across the Board

Bhuwania makes the point early on his book that “the delegitimization of legal procedure that companied 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 [draconian statutes that impact civil liberties].” Gautam Bhatia’s review of the book makes a similar point. While I agree with the substance of their concerns that the Court has weakened civil liberties protections in the name of larger goals such as national security (and have written on this before here, here, and here), I would argue that this has less to do with PILs per se, and more to do with the judicial role and method instituted in the late 1970s. The judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board. We can take away the PIL jurisdiction without disturbing this new logic. In that sense, I take issue with the causality that Bhuwania appears to be claiming between PILs and its impact on other areas of law. Judicial populism and distrust of formalism can be seen in teleological interpretative techniques; in the subordination of fundamental rights to directive principles (and increasingly to fundamental duties); in the invocation of public interest and national interest as grounds to justify state action or deny rights (including in fields as far removed from PIL as bail law); in the rise and expansion of the SLP jurisdiction (which in the words of the Court provides “untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges.”); and in the expansion of the Article 142 power to do ‘complete justice” from a power aimed at “ironing out the creases” at the margins to address minor procedural issues, to a “plenipotentiary power” that can be used to set aside and supplant existing laws, or even create completely new jurisdictions.

The problem is not PIL per se, but a particular conception of judicial role and particular modes of judicial reasoning that the Court resorted to in its response to the political discourses of the 1970s. PIL is as much a symptom as of this new judicial discourse as the shifts in other areas of decision making. As Bhuwania himself finds, this new role and reasoning is tethered to outcomes – outcomes that advance the goals of the state and the larger interest of the national project, and views the role of the judiciary as part and parcel of advancing these goals. Consequentialist modes of reasoning and teleological justifications have become the hallmark of judicial method across the board. As such, the shift in discourse that created PILs has also introduced expanded judicial power, a disdain for procedure, and a subordination of individual rights to broader social goals universally. The challenge then is not PIL (or only PIL), but the role conception of the judiciary and the means and methods it employs. Bhuwania’s critique needs to be applied far beyond the realm of PILs.

The Substantive Transformations of PIL

Bhuwania claims that “PIL is primarily a revolution in judicial procedure” (p.12). I disagree. The ubiquitous presence of PILs was made possible by an expanded reading of rights. The Court had to ground its jurisdiction in Article 32, which allows it to entertain original petitions from citizens only for violations of fundamental rights. Therefore, an expanded reading of the scope of rights was integral to expanding the scope of PILs. This was achieved primarily through the expansion of the scope of Article 21, through reading in directive principles and international law norms into the provision. The interpretative techniques used to expand rights (but at the same time dilute limitations thereon) were grounded in the same teleological reasoning that is at the heart of PILs. So, while on the one hand Directive Principles gave content to the “right to life” under Article 21, they were also used to expand the understanding of “reasonable” law that could limit such a right under the “procedure established by law” clause of Article 21. Similarly, while Article 19 could be given an expanded definition, laws framed to advance DPSPs were viewed as “reasonable restrictions” on such rights. Both types of interpretations – of the scope of the right, and the extent of its limitation – were achieved through the same interpretative technique. This interpretative technique has expanded the power of the judiciary (by extending the kinds of claims that they can entertain), but at the same time expanded the power of the state to side-step fundamental rights. Ironically then, the expansion of rights has made rights less meaningful for the citizenry. This too, is part of the PIL story, and is likely to get lost in focusing only on the procedural aspects of PILs.

Process, Public Power, and Accountability

Bhuwania argues against Bhagwati’s consequentialist view of PILs. He opposes the idea that PILs can be evaluated only on the basis of whether one agrees with their outcomes. This, he finds, is a recipe for disaster – such a reading is what makes “bad” PILs possible in the first place. To make his argument, Bhuwania makes a strong case for the importance of process.

It is easy to misread Bhuwania as setting up a binary between process and substance, principally because he does not explain the value of process except as demonstrated through his case studies where the failures of process led to bad outcomes. I don’t read him as setting up such a binary but I do think it is important to explicate the substantive values underlying procedural norms. As Bhuwania shows through case studies, these values – of fairness, representation, participation, non-arbitrariness, etc – ought to be discarded at our own peril. Where Bhuwania does not venture, however, is the institutional value of process and the importance of norms and procedures as accountability mechanisms. Courts are public institutions, enjoying and dispensing public power, and therefore should be accountable to the public for the decisions they make. The major constraint on judges and a source of their accountability is the requirement for public reasoning in conformity with publicly available norms and procedures. Thus, process has value beyond its impact on outcomes. Without such institutional controls, we rely on blind faith in judges rather than holding them accountable to publicly accessible standards.

Two Methodological Concerns

Bhuwania’s case studies deal with PILs relating to urban governance in Delhi. He does not explain why these cases exemplify problems with PILs across the board. Further, and more importantly, Bhuwania’s case studies –the Delhi Vehicular Pollution case, the Delhi Industrial Pollution case (in its many iterations), and Delhi Slum Demolition cases – are all instances of bad process and bad outcomes. They instantiate Bhuwania’s points about the ways in which procedural safeguards are given a go-by in PILs and the impact that this has on the lives of those affected. Missing in this narrative are the counter-factuals that would explain why these cases were able to achieve what they did. Take for example Vishaka – by most accounts a good PIL in terms of its outcome. Why is it that the Vehicular Pollution case was able to wreck havoc on public transport in the city but Vishaka, despite its widespread celebration, had little impact on the daily lives of women? Why is it that the courts were able to get the state to take swift action in Bhuwania’s case studies (expect in parts of the Industrial Pollution case), but failed drastically in the implementation of the Vishaka guidelines so much so that the Supreme Court was itself in violation of the guidelines for 16 years?

Another example is the ongoing AADHAR litigation where the government is flouting the Court’s orders with impunity. What accounts for the devastating and immediate impact of some orders, and not of others? Is there a story to be told here about actors outside the judicial realm that make PIL possible? I believe there is a need to develop non-institutional accounts of PILs – of the ways and means through which the pronouncements of courts are enacted upon the lives of people, and the modalities through which they are resisted. In such a telling, PILs are not only about judges or amici, and change happens not only because judges decree it, or wield extensive contempt powers. The impact of PILs often stems from reasons beyond the judicial realm such as political will, consonance with dominant ideologies, etc. In Bhuwania’s own examples, he narrates the importance of particular political dispensations and executives who were in tune with the court’s own approach to urban governance – and the impact this had on the implementation of court orders. In this sense, it is not only the process of PILs that makes specific kinds of politics possible. PILs are as much about the out of court personnel and indeed the ideological realm in which the order is received. Counter-factuals like Vishaka, etc would have enabled such deeper interrogation of the operation of PILs.

Finally, if we agree with the problems posed by PILs, what is the alternative? Bhuwania argues for a judicial role conception grounded in John Hart Ely’s influential theory of representation-reinforcement – the idea that the proper scope of judicial review is to facilitate the working of the democratic process. Judicial intervention in decisions of the elected branches of government should be limited to those instances where the democratic channels are ineffective, and the mode of intervention should be such as to ensure that these channels are open to democratic practices. Those who are likely to be perpetual losers in majoritarian processes – like discrete and insular minorities – should receive greater attention and “heightened judicial solicitude” to ensure that their rights are protected within the democratic sphere.

Bhuwania unfortunately does not explain why Ely’s formulation of the judicial role is suitable for the Indian judiciary. It is important to recall that Ely’s work is part of a series of interventions that were responding to Alexander Bickel’s concerns about the “counter-majoritarian” difficulty in judicial review in the American context. Ely theory was formulated as a response to this legitimacy concern regarding judicial review. The entire model – the legitimacy concern as well as responses to it – are grounded in a very Anglo Saxon conception of the relationship between state and citizen and judiciary and other branches of government. As Bhuwania himself outlines in his initial chapters, India (and indeed many post-colonial constitutional orders) have adopted a different, more interventionist conception of the state. Why is this restrained model of judicial intervention appropriate for judiciaries in such states?

Bhuwania makes the point that just as we should not buy into the Anglo-Saxon model of judicial review simply because it provides a readymade template, we should not also celebrate departures from the model only because it is a departure. While this is true, and it is not my argument that the Indian experience is “incomparable” or that we cannot learn from Anglo-Saxon jurisdictions, there are other models that are more suited as comparators for India. The growing literature on global south constitutionalism which seeks to locate the role of courts in the particular political and material realities of third world countries might be more a relevant interlocutor on the issue of the appropriate role of the judiciary. After all, context does matter, even if it isn’t everything.

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(Aparna Chandra is an Assistant Professor of Law and Research Director, Centre for Constitutional Law, Policy and Governance, National Law University Delhi. She teaches constitutional law, constitutional theory and human rights)

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – II: Shields, Swords, and Where Do We Go From Here?

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book discussion, Public Interest Litigation

(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).

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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.

ICLP Book Discussion:Anuj Bhuwania’s ‘Courting the People’ – I: A Radical Revision

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book discussion, Public Interest Litigation

(Over the course of the coming week, The Indian Constitutional Law and Philosophy blog will host a book discussion of Anuj Bhuwania’s Courting the People: Public Interest Litigation in Post-Emergency India. Courting the People is an important new book that brings an entirely fresh perspective to Public Interest Litigation [“PIL”] in India. In this opening post, I will introduce the main themes of the book. This will be followed by comments from myself, Suhrith Parthasarathy, and Aparna Chandra. At the end, Anuj Bhuwania will respond).

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Over the last three decades, an almost unshakeable narrative has emerged with respect to the Indian Supreme Court’s PIL jurisprudence. PIL, we are told, emerged out of a contrite Supreme Court’s determination to make up for its constitutional abdication during Indira Gandhi’s Emergency. Led by pioneering and visionary judges in the 1980s, PIL began as a democratic exercise, seeking to make justice accessible to the poorest and most marginalised of citizens. Defined by relaxed rules of locus standi, an expansion of Article 21 of the Constitution, and wide-ranging remedial action, PIL was a noble and inspiring judicial endeavour. But, as is often the fate with noble endeavours, it was eventually corrupted. In the late 1990s, influenced by a changed political economy and an increasingly corrupt and dysfunctional political executive, a “neoliberal” Supreme Court swerved sharply away from PIL’s original objectives, and began to cater to a permanently outraged urban middle class, taking on issues such as polluted cities, forest management, and so on. Still later, in the 2000s, the Court turned its focus to “good governance”, moving even further away in philosophy and orientation from the 1980s. This has led to natural and obvious problems.

This narrative – that insists upon the fundamental goodness of PIL, while decrying certain “abuses” that have crept in over time – is fundamentally challenged by Bhuwania in Courting the People. Its importance lies in the fact that makes a thoroughgoing critique of PIL as an institution, instead of simply tinkering at the edges. Bhuwania’s core claim – a radically revisionist claim – is that the well-documented “abuses” of PIL cannot be separated from its core features. PIL – Bhuwania argues – originated with certain pathologies; for a while, these pathologies were hidden or obscured, at least partly because what the Court was doing resonated with the ideological predilections of its primary interlocutors in the legal academy, at the bar, and in the media. But now, with the Court itself having committed an ideological volte face, those pathologies appear starker, and are sought to be explained away as “abuses”. This, according to Bhuwania, obscures more than it reveals. In his colourful way of putting it:

“PIL has often been talked of as a romance – if anything, as a romance gone wrong. In this book I will argue that PIL was a tragedy to begin with and has over time become a dangerous farce.” (p. 12)

What are these pathologies? Through a survey of legal doctrine, as well as an ethnographic study conducted by Bhuwania, who spent two years observing (and sometimes being involved with) PIL proceedings before the Delhi High Court, the following themes emerge:

First, after the filing of the petition, the Public Interest Petitioner becomes peripheral to the proceedings. Bhuwania talks of the famous Sheela Barse case (in the mid-1980s), which was about prison reforms; when Sheela Barse herself wanted to withdraw the PIL, the Court refused to allow her to do so, and went on with the case anyway. In the 1990s, this phenomenon accelerates, and is complemented by cases where the Court itself initiates proceedings (Court on Its Own Motion versus ______), without the existence of a public interest petitioner. One result of this – and this is a standard theme throughout the book – is that a PIL that begins as an issue about a specific, narrow subject (such as, say, solid waste management) is transformed into an “omnibus case” that reaches monstrous proportions, and becomes about dealing with social problems on a huge scale (Godavarman, for instance, is basically the Supreme Court undertaking management of India’s forests).

Although Bhuwania doesn’t develop the argument further, the problem with this kind of a process is obvious. PIL began as a mechanism of securing justice to persons who were unable to approach the Court of their own accord, whether because of poverty, a lack of awareness of their rights, or for another similar reason. The public interest petitioner was deemed to be acting on their behalf before the Court. In other words, the public interest petitioner is the only link between the Court and the people whose “interests” are (supposedly) central to the litigation. Removing her, therefore, betrays PIL’s very raison d’etre.

Secondly, Bhuwania shows how, in a number of PIL cases, the Public Interest Petitioner is replaced by an amicus curae (“friend of the Court”), who often happens to be a senior, well-established lawyer. The conversation is limited to the Court and the amicus. Bhuwania cites a particularly sickening example of this in the Forest Case (one of the Supreme Court’s largest PILs): at a hearing, Sanjay Parikh, who was representing indigenous persons directly interested in the outcome of the PIL, was not allowed to make arguments, and was instead told that the interests of the indigenous persons would be taken care of by the amicus. By taking the examples of several PILs at both the Supreme Court and the Delhi High Court, Bhuwania shows how the direction of “big-ticket” PILs ends up being virtually taken over by the amicus, who becomes a clearing house for interlocutory applications, and assumes the task of guiding the PIL through succeeding benches of the Court.

Thirdly, Bhuwania points out that a number of parties interested parties are never heard in Court. At the very beginning of the book, he recounts an incident where, attempting to halt an ongoing slum demolition, he was shown “a notice [that] listed a writ petition under which its demolition had been ordered, which none of the inhabitants of the settlement had ever heard of.” (p. 11) This – he shows – was particularly common practice during the Delhi High Court’s PIL-managed slum demolition drive in the mid-2000s. Pointing to a PIL that began as something entirely different, but somehow became about slum clearances around the Yamanua bed, Bhuwania notes that:

“The court here made its own accusations, came up with its own facts and ordered its own remedy, without feeling the need to hear anybody else.” (p. 90)

Harsh, but true.

A combination of these three factors – the marginalisation of the original petitioner, the primacy of the amicus, and the failure to hear affected parties – ensures that PIL cannot in any sense be called “democratic”, or be said to be about “democratising justice” (or, in the words of one of its most enthusiastic cheerleaders, an instance of “demosprudence”). On the contrary, it is an exemplar of elite, top-down “justice”. One of Bhuwania’s important insights is that despite its elitist and exclusionary character, PIL, from its very inception, has been justified in the name of the people (and hence, the title, Courting the People). Bhuwania draws some disturbing parallels between Emergency-era slum clearances, and the slum demolition drives of the 2000s. Both, he points out, were ultimately justified by similar rhetoric.

Fourthly, the refusal to hear interested parties is accompanied by an eschewal of standard rules of evidence. Bhuwania points out that this began with a case that is normally hailed as the gold standard of PIL: Bandhua Mukti Morcha vs Union of India. In that case, which was about the exploitation of workers at stone-crushing quarries, the Court had appointed a Commission to bring out a report. The defendants objected to the report, arguing that it was based on ex parte statements, which had not been subjected to the rigours of cross-examination. Bhagwati CJI rejected this argument by stating that PIL was not “adverserial” litigation, and characterised by procedural flexibilities. Two decades later, the chickens truly came home to roost when, in the slum demolition cases, the Delhi High Court simply refused to hear factual arguments aimed at demonstrating that the slums, in question, were not illegal structures.

As a related point, Bhuwania also shows how the Courts’ PIL jurisprudence has essentially turned into death by a thousand interim orders. PILs are defined by continuing proceedings: instead of a final judgment resolving a case, the proceedings are kept alive through interim orders, passed from time to time, over years. Unlike a final judgment, interim orders do not have to be reasoned. Consequently, some of the most far-reaching impacts of PIL take place through – what is effectively – pure judicial fiat.

Fifthly, a combination of all the four factors – impoverished participation and a rejection of evidentiary standards – necessarily yields outcomes that often have catastrophic consequences. Bhuwania takes the example of the Delhi Vehicular Pollution Case (which, again, began as a narrowly-focused PIL, but soon ballooned into a PIL for dealing with pollution in Delhi). At various points, the Supreme Court passed orders freezing the number of auto-rickshaws in the city, and also mandating a compulsory switchover to compressed natural gas (CNG). What resulted was the following:

“… studies have shown that before the Supreme Court’s double whammy, most auto rickshaws were owned by drivers themselves, but the effect of the fuel change and the permit freeze was that almost the entire fleet of auto rickshaws came under the control of financiers and drivers were converted into wage labourers.” (p. 55)

Readers will recognise here Lon Fuller’s famous argument that the judiciary is particularly ill-suited for resolving “poly-centric” disputes: that is, disputes involving multiple factors and aspects, where a move aimed at resolving one aspect will have knock-on effects on the system as a whole; such disputes, Fuller argues, require the kind of fine-grained balancing that the Court simply does not have the resources to indicate (in the PIL contest, this argument has been made by Lavanya Rajamani). Bhuwania’s insight, however, takes us one step further: given that the Court has chosen to adjudicate poly-centric disputes through PIL, one would expect it to pay even greater heed than normal to ensuring full representation of all stakeholders, and rely even more on the opinions of domain experts. Instead, the judiciary has gone the exact other way.

Sixthly, these factors lead not only to bad results, but also to inadequate understanding of the problems at hand. As Bhuwania points out, in the context of the slum demolition cases, the overriding rhetoric that emerges from the Courts is that “public land” is being illegally occupied, at the expense of taxpayers, and therefore needs to be cleared. However, this is a very simplistic explanation of both the causal issue, as well as in its attribution of moral agency. What it ignores, for instance (and here Bhuwania draws on the work of Usha Ramanathan), is:

“The cause of the ‘illegal’ occupation of public land is… directly attributable to the non-performance of state agencies.’The 10^th Plan document of the Planning Commission of India itself noted that up to 90 per cent of the deficit in urban housing at the time pertained to the urban poor and was attributable to the non-provision of housing to slum dwellers. The courts, throughout this period, ignored any attempt to bring to its notice to any such systemic analysis.” (p. 85).

Seventhly, the overarching justification for PIL – right from its inception – was outcome-based. Bhuwania points to many statements made by Justice Bhagwati – which focused on how what mattered were what the Courts were doing (readers will recall that this is also the justification offered by PIL’s primary academic defenders). What this ended up doing, Bhuwania argues, was naturally that:

“Once a frankly instrumental role is accepted for PIL courts, with its decisions moored only by concepts as capacious as ‘social justice’, whose meanings necessarily vary with the zeitgeist, it should be no surprise that the issues taken up by a new generation of PIL judges for their social activism are of a very different sort from the original votaries of PIL.” (p. 116)

This last paragraph takes us to the heart of Bhuwania’s argument. The instances of “bad PILs”, or “abuses of PIL” were simply made possible because of what PIL allowed judges to do, the kinds of power it vested them with, and how it dispensed with existing rules of procedure as unnecessary, or as impediments to justice. In the case of criminal law, for instance:

“… 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 statutes.” (p. 26).

Consequently – to sum up Bhuwania’s argument – it makes no sense to talk of “good PILs” and “bad PILs”, or “abuses of PIL”. The problem is PIL.

This is a bold and radical argument, that goes against the grain of prevailing academic, legal, and judicial consensus. Over the course of the coming week, we will discuss some of its claims further, and in greater detail.