The term ‘judicial activism’—popularised, if not created, in the 1990s—is mostly used in a pejorative sense, signifying an over-zealous judiciary interfering with legislative and executive functions. In our country, though, a series of decisions by Supreme Court justices throughout the late 1970s and 1980s spearheaded a unique legal mechanism called Public Interest Litigation (PIL), also known as social action litigation. As clear from the name itself, this legal mechanism is directed towards ensuring collective rights, distributive social justice and economic equitability. To the credit of the apex court, we have quite a few judgments that have contributed significantly towards creating legal safeguards to “promote and vindicate public interest”.[1] Gender justice and environmental protection in particular have gained considerably from PILs.
In an oblique sense, the late Mrs Indira Gandhi needs to be thanked for this mechanism, for the excesses of State control during the Emergency (June 1975–February 1977) declared by her prompted Justice P.N. Bhagwati and Justice V.R. Krishna Iyer to introduce a very significant change in the notion of locus standi in the post-Emergency period. The role of the media is not to be missed either. Once the political situation had changed, investigative journalism brought out shuddering details of State repression, custodial violence and denial of civil and political rights of a vast number of people during the Emergency. In the late 1970s and early 1980s—when the Indian electorate resolutely voted in the first-ever non-Congress government—the country witnessed serendipity in an informal but strong alliance being formed among social activists, the media and Supreme Court judges. That contributed to a radicalisation of the concept of locus standi, which in turn made PILs possible.
Locus standi, for ready reference, means standing in law, the condition(s) necessary for one to be authorised for lodging a case. In traditional Anglo-Saxon jurisprudence, followed also in India till the late 1970s, only an aggrieved party, someone who has faced a legal wrong, had the locus standi to lodge a case. Justices Bhagwati and Krishna Iyer radicalised this notion by moving away from such a laissez faire approach to justice and authorised every public-spirited citizen to have the locus standi to lodge a case if fundamental rights granted by the Constitution get violated—irrespective of her/his being directly affected. Violation of rights may happen to people who are unable to reach the justice system owing to their socio-economic positions and/or political situation. Only the broadening of the definition of locus standi could ensure that such people are not denied access to justice. Justices Bhagwati and Krishna Iyer mention in their judgment in PUDR v. Union of India (1983) that the Court is constitutionally obligated to ensure that every citizen has access to justice, for which they had to “forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people.”[2]
The first known PIL was in 1979 about the state of undertrial prisoners in the jails of Bihar: Hussainara Khatoon v. the State of Bihar. This petition, filed by an advocate on the basis of a news item published in the Indian Express, led to the release of more than 40,000 undertrials and the right to speedy justice was strongly reinforced, a trend followed subsequently in many other cases. However, the PIL mechanism was formally established in 1980, when in its judgment in S.P. Gupta v. Union of India (1982), the Supreme Court articulated unequivocally that if ”such person or determinate class of persons by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ. . .seeking judicial redressal for the legal wrong or injury”.[3]
Another important step in formalising the PIL system was establishing what is known as ‘epistolary jurisdiction’—implying that a case of public wrong being brought to the notice of a High Court or the Supreme Court simply through a letter (epistle) or a telegram (now defunct) addressed to the Court is also to be recognised as a formal writ petition, to which judges must pay immediate attention. Further, a person or organisation lodging a PIL does not have to incur any out-of-pocket expenses for lodging a PIL. However, since PILs can be lodged only in cases of constitutional rights violations, they can be lodged only against a government at the centre or in any of the states or Union Territories of India, any local self government authority such as a municipal corporation, and all statutory bodies such as Pollution Control Boards. In a nutshell, agencies included in Article 12 of the Indian Constitution can be challenged through a PIL; but not any private party. However, a private party can be made a respondent in a PIL lodged against any of the Constitutional bodies mentioned above. For example, if factory in a particular state is causing pollution, that factory can be made a respondent in a PIL lodged against the Pollution Control Board under the government of that state.
Justices Bhagwati and Krishna Iyer justified the formalisation of PILs through Article 32 of the Indian Constitution, which guarantees the right to move the Supreme Court for the protection of fundamental rights. The language of the Constitution does not specify who can move the Supreme Court and this broadness was used by the judges to institute PILs. The judges interpreted this lack of specificity to be deliberate, whereby the Constitution makers conferred upon the Supreme Court the liberty to move away from any rigid formula and find new ways of guaranteeing the protection of fundamental rights.
At the international level, the European Court of Human Rights has played a major role in promoting and protecting human rights, especially in the 1990s when socialist rule in east European countries came to an end. The Public Interest Law in the USA is also a similar mechanism to allow previously unrepresented population groups and public interest issues to be legally represented, which was widely used during and after the social turbulence of the 1960s. China also has a public interest law (Gong Yi Fa) which has been successfully used by a small but effective community of lawyers and non-State actors, especially in addressing cases of sexual harassment at workplace and enforced incarceration of healthy people in mental asylums.[4]
One of the most noted PILs in India was Vishaka v. State of Rajasthan (1997), which led to the formulation of the Supreme Court guidelines to prevent sexual harassment of women at the workplace, later passed by the Lok Sabha as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013—undeniably a remarkable step towards women’s empowerment, embodying the spirit of economic equitability. The apex court has drawn upon Articles 14 and 15 on several occasions to issue directives to governments at both the state and national level to enact special/additional laws to prevent discrimination against women. It would, however, be a blatant exaggeration to claim that Court’s response to PILs for gender justice has always been progressive and free from hetero-normative patriarchal biases.
Indira Jaising, senior Supreme Court advocate renowned for her prominent role in advancing women’s rights, stresses the significance of Article 14 in promoting gender justice, saying that “its brevity enhances its omnipotence, enabling creative judges to read within it the equality of results.” However, she also cautions that the use of the term “only” in Article 15 allows judges to segregate sex from gender and pass evidently discriminatory verdicts. [5] The Supreme Court’s decision in Air India v. Meerza (1982) is a clear pointer, where the provision of airhostesses needing to resign from their jobs if they got married within four years of their employment was upheld, though it is not applicable to their male counterparts. The judges handling the case argued that the difference in the provisions was not only on the basis of sex, but on other conditions in combination with that.
An even more potent example of how the attitudinal positions of individual judges can influence non-discriminatory decisions is provided by the judgments of the Delhi High Court and the Supreme Court in the PIL lodged by the Naz Foundation in support of repealing Section 377 of the Indian Penal Court. The Delhi High Court had referred to Articles 14, 15, 19 and 21 of the India Constitution in its judgment on 9 July 2009, reading down Section 377 to be inapplicable to consensual adult sex in private. The Supreme Court, however, in its verdict dated 11 December 2013, not only interpreted the same Articles to be non-applicable to Section 377, but mentioned that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” (Point #43, page 83 of the judgment), which is in conflict with the spirit of the Constitution that guarantees fundamental rights to all its citizens, as also of the PIL mechanism that seeks to ensure those rights for disadvantaged population groups.
There are debates and discussions on the pros and cons of PILs in India. While debates are always healthy to promote freedom of speech and expression, it is perhaps necessary also to think of a judicial reform that could ensure that the scope of individual judicial interpretation of Articles 14 and 15 becomes limited so that verdicts can always be towards promoting non-discrimination on the basis of sex and gender.
[1] People’s Union for Democratic Rights (PUDR) v. Union of India (1983): quoted by Avani Mehta Sood in her article ‘Gender Justice through Public Interest Litigation: Case Studies from India’, published in the Vanderbilt Journal of Transnational Law, Vol 41: 833; p 837
[2] Ibid, p 838
[3] Ibid, p 839
[4] Congressional-Executive Commission on China, 2011 Annual Report, Parts II and III (October 10, 2011), available at http://www.cecc.gov/pages/annualRpt/annualRpt11/AR2011final.pdf
[5] Jaising, Indira: ‘Gender Justice and the Supreme Court’ in Supreme but not Infallible: Essays in Honour of the Supreme Court of India, Kirpal, Desai et al (edited), Oxford University Press, New Delhi, 2000. Article 15 of the Indian Constitution prohibits governments from discriminating against anyone ‘on grounds only of religion, race, caste, sex, place of birth or any of them’.
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