This posts marks the talk delivered by Anuj Bhuwania on the origins of public interest litigation in India, organised by the South Asian Law Discussion Group and the South Asian Political Theory Discussion Group.

Introduction

This post presents a review of Anuj Bhuwania’s book, Courting the People: Public Interest Litigation in Post-Emergency India (CUP 2016). Bhuwania’s central argument is that public interest litigation (“PIL”) was a “tragedy to begin with… [and has] over time become a dangerous farce” (p.12). He first provides a legal history of the PIL and then exposes, with the help of illustrative cases that: 1. PIL cases may not always yield positive results; and 2. the relaxation of court procedure surrounding PILs could have undesirable fallouts such as the lack of judicial accountability, and the imposition of personal ideology.  However, his book leaves one crucial question unanswered: should we do away with the PIL altogether or just remedy its defects?

What is PIL?

Loosely stated, Bhuwania defines PIL as a judicial procedural innovation which can relax locus standi and evidence collection and evaluation standards. As a result of this definition, Bhuwania points out that courts have been able to relax many procedural restrictions, including the following: parties not affected by a dispute may bring a claim; judges can initiate proceedings suo motu, appoint evidence collection teams and evaluate evidence at the Supreme Court and High Court levels (which do not have the same procedural standards for evaluation of evidence as trial courts), issue multi-phased remedies, and supervise their execution. Bhuwania does not expressly discuss the substantive scope of PILs.

The Emergence of Public Interest Litigation: Exploring Alternate Explanations

Bhuwania states that the imposition of the internal emergency by the then Prime Minister, Indira Gandhi, in the 1970s marked the ultimate capitulation of the Supreme Court (“SC”). The SC reached its lowest point, Bhuwania asserts, when it refused to constitutionally evaluate a Presidential Order that suspended,  the fundamental rights of, among others, equality (Article 14), freedom from discrimination (Article 15) and life and liberty (Article 21) for the period of the emergency (the Shivkant Shukla case). Post-emergency, Bhuwania argues that the court was in “a new search for legitimacy” (p.24) and “responded by mimicking Mrs. Gandhi’s [socialist] populism” (p.5). Thus the PIL was born.

The populism referred to here is the socialist populism signified by the various constitutional amendments of the time — inter alia, addition of the word “socialist” to the preamble (42nd Amendment) and the removal of the right to property from fundamental rights. However, how could a Supreme Court that had lent itself to the protection of rights of the people (e.g. the free speech cases of the early 1950s) be so convincingly repackaged as anti-people such that it had to invent a manoeuvre, the PIL, to dispel this notion? What would happen to the judiciary if it did not take this route—would judges be out of jobs or would the SC be demolished? Bhuwania’s retelling of the Supreme Court’s legal history does not raise or answer these questions.

From Illustrative Cases to Sustained Theory

With the help of two case studies, Bhuwania shows that in PIL matters, judges can exercise limitless procedural and subject matter jurisdiction. This awakens a familiar fear in our hearts: that absolute power can corrupt absolutely. However, he himself accepts, “[i]t is not a story we encounter very often with PIL…”(p.73). How then, do these examples translate into a sustained theory that the PIL is a “dangerous farce”? True, a PIL may give itself easily to ideology but this is not unique to PILs.

To show that PILs are a dangerous farce, Bhuwania must show that there is something inherently wrong with the PIL when viewed from his ideological standpoint. Alternatively, and to a lesser extent, there are two other ways of doing this i.e. by showing either a.  strains of discourse need to be banished from the PIL (and a PIL lends itself almost without exception to these strains as compared to other cases); or b. an empirical analysis of PIL cases reveal overwhelming underlying (undesirable) trends. Bhuwania quotes one study (p.114) that tries to find an association between win rates and social class but does not explore the matter further. This becomes especially important in a book such as Bhuwania’s which indicts an avowedly good and helpful innovation—the PIL. After all, Bhuwania himself admits, on p.116, that, there are bad PIL cases and good PIL cases (the NALSA judgment comes immediately to mind).

To conclude, Bhuwania adapts that most memorable feminist slogan, “the personal is political” to suggest that the “procedural is political” and cautions us that we should be not uncritical of the PIL but the ultimate question is yet unanswered: should we demolish the PIL altogether or would it be possible to remedy the defects and retain the concept?