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Comparative Studies of South Asia, Africa and the Middle East

Courting the People


The Rise of Public Interest Litigation in Post-­Emergency India

Anuj Bhuwania

It is by no means merely a matter of misguided theory that the French concept of le peuple has carried,
from its beginning, the connotation of a multiheaded monster, a mass that moves as one body and acts
as though possessed by one will; and if this notion has spread to the four corners of the earth, it is not
because of any influence of abstract ideas but because of its obvious plausibility under conditions of
abject poverty.
 — Hannah Arendt, On Revolution

T
he Indian Supreme Court is widely considered the most powerful judicial institution in the world.1
The rise in its power follows the reconfiguration of Indian political life in the aftermath of the
Emergency of 1975 – 77. In the last thirty-­five years it has acquired a central role in Indian public dis-
course.2 The principal means by which the court has acquired its new importance is the phenomenon of
“Public Interest Litigation,” or more commonly PIL — a term that is too easily translated into its American
(and hence “global”) counterpart but in fact has little in common with it. PIL is a unique feature of the
Indian appellate judiciary. It is not simply pro bono lawyering, something that a certain tribe of lawyers
do, like in the United States. In India, PIL is a jurisdiction — that is, what some judges are empowered to
do in a specific capacity provided or interpreted in the law. As Canadian scholar Jamie Cassels wrote in
1989, “Unlike the case of public interest litigation in Canada or the United States, the legal aid/public
interest movement in India has been almost entirely initiated and led by the judiciary.”3
The Indian form of PIL jurisdiction was born in the immediate aftermath of the Emergency,
through the ingenuity of a Supreme Court commonly seen as trying to undo the legacy of its capitulation
to the political rulers of that period. PIL, right from the start, was marked by impatience with technical
formalities and a key rhetorical mode increasingly deployed by judges: arguments made in the name of
“the people.” In other words, the court redefined itself as the fount of substantive justice: portraying itself
as the “last resort for the oppressed and bewildered.”4
In this article, I will map the discursive context that PIL responded to and reconfigured with enor-
mous popular appeal — locating its roots in the political language of the India of the 1970s. In fact, the
emergence of PIL was famously hailed in the early 1980s by the leading Indian legal scholar Upendra

1. See, for example, Cunningham, “The World’s Most Powerful Court.” 4. Baxi, “Taking Suffering Seriously,” 107.

2. There are other related changes that accompanied the PIL phenom-
enon, which gave the Supreme Court a much higher profile — the expan-
sive interpretation given to Article 21, pronouncing all kinds of unlisted
rights within the rubric of right to life.

3. Cassels, “Judicial Activism,” 497.

314 Comparative Studies of South Asia, Africa and the Middle East
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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 3 15

Baxi as indicating that the court had “at long last” the freedom movement; and finally, and most
become the “Supreme Court for Indians.” I will crucial for our purposes, ideas of social revolu-
explore here this “people’s court”5 aspect of the tion that stemmed, in an immediate sense, from
Indian Supreme Court. My effort, in particular, the Objectives Resolution adopted during the De-
is to understand why the court needed to position cember 1946 Assembly session.8 The most radical
itself as speaking for “the people,” and how it man- departures signifying a move toward a postcolo-
aged to do so. I will first deal with the why, and nial constitutional framework were incorporated
then with the how of the journey that the Supreme in parts III and IV of the Constitution, both parts
Court of India undertook in the post-­Emergency being products of elaborate comparative consti-
period to be able to ventriloquize “the people.” tutional scholarship by the framers. Part III lists
“Fundamental Rights”: mostly negative rights bor-
Constitutional Roots of PIL rowed from Euro-­A merican history, with some in-
The first question here is this: Why did the Su- teresting departures facilitating state intervention
preme Court emerge so powerfully only in the to ensure socio-­religious equality. But it is part IV
post-­E mergency period? After all, the court’s that makes the Indian Constitution a teleological
powers under the Indian Constitution have re- text, a transformative constitution that squarely
mained largely unchanged since the Constitution tries to deal with “the social question” of wide-
first came into force in 1950. The answer to this spread poverty. Its key provisions prescribe the di-
conundrum lies partly in the text of the Constitu- rection to which the state must aspire. (The idea
tion and partly in the specific political conjuncture of having “Directive Principles of State Policy,” as
of 1970s India. Sudipta Kaviraj has argued that these provisions are called, was borrowed from the
“the political history of independent India can Irish Constitution.) Uday Singh Mehta has argued
be divided into two distinct historical periods to that the incorporation of such constitutionally pre-
date.”6 The first lasted until the late 1960s, and its scribed futures implied that “the nation was now
political life could be “fit unproblematically into conceived as a project.”9 Unlike the US Constitu-
the liberal-­individualist format of constitutional tion, the Indian Constitution was not primarily a
arrangements.” By the late 1970s, Kaviraj argues, procedural document, as American constitutional
there emerged a new “vernacular” to Indian poli- scholar John Hart Ely has argued, but a substan-
tics based on the languages of caste, region, and tive one.10 To place it in a comparative frame made
religion.7 A similar periodization, I argue, can be famous by Hannah Arendt, and applied to India
made for the Indian Supreme Court, though in its by Mehta, the Indian constitutional revolution fol-
case, as we shall see, gestures toward vernaculariza- lows the French example, not the American one. It
tion were self-­consciously adopted to mimic trends sets out to deal with “the social question,” i.e., with
in the larger Indian political domain. how issues of material destitution and inequality
The Indian Constitution, in the words of might be addressed. As Mehta writes, “For Arendt,
its most famous historian, Granville Austin, is a the American Constitution served as an ideal in
seamless web of three mutually dependent and which political power was limited, public freedom
intertwined strands — fi rst, a federal governance secured, and national unity anchored in the struc-
structure that has its roots in the late colonial-­era tures of political institutions — and all this was pos-
Act of 1935; second, principles of democracy and sible only because social questions were kept at
universal adult suffrage providing popular sover- bay.”11 But it is not the American model that the
eignty and drawing from the Congress party and Indian and most other postcolonial constitutions

5. For an early use of this term for PIL, see Singh, 8. See Austin, Working a Democratic Constitu- process and structure and not to the identifi-
“Access to Justice,” 173. For a more recent use tion, 6 – 7. cation and preservation of specific substantive
see Robinson, “Hard to Reach.” values” (92). And again, “As a charter of govern-
9. Mehta, “Constitutionalism,” 17.
ment a constitution must prescribe legitimate
6. Kaviraj, “Ideas of Freedom,” 77.
10. Ely, Democracy and Distrust, 92. “The origi- processes, not legitimate outcomes” (101).
7. Ibid., 78. nal Constitution was principally, indeed I would
11. Mehta, “Constitutionalism,” 25.
say overwhelmingly, dedicated to concerns of

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adopt. American constitutionalism “stemmed thereby made justiciable, with the project of the
from a deep distrust of power. . . . The first im- new state, as incorporated in the Directive Prin-
pulse of this constitutionalism was thus to limit ciples, would soon become the principal juristic
political power, to be suspicious of it, and to con- battleground of the postindependence period.
strain its reach.” Indian constitutionalism, on the The political discourse that emerged around it
other hand, constitutes power and “celebrates its saw Fundamental Rights as an obstacle to the re-
ambit.”12 Channeling Arendt’s famous warning alization of the social revolution, as enunciated in
that “every attempt to solve the social question by the Directive Principles. This conflict framed the
political means leads to terror,”13 Mehta suggests fraught relationship between the judiciary and the
that in India too, with such a vision, “freedom is Congress regimes in the immediate aftermath of
recessed, and the tendency for political power to the adoption of the Constitution. The most obvi-
operate without limits deeply ingrained.”14 ous reason for the conflict was that the Supreme
The socially revolutionary agenda of the In- Court had specifically been made the custodian of
dian Constitution, as mentioned above, is incorpo- Fundamental Rights by the Constitution, while the
rated into the Directive Principles of State Policy. Directive Principles were after all, legally speak-
These principles, though nonjusticiable, unlike the ing, merely the aims of the state without any force
Fundamental Rights, were declared to be “funda- of law.
mental in the governance of the country.” As Aus- The powers of the Supreme Court under
tin summarized it, the Directive Principles contain the new Constitution are important to note here.
“a mixture of social revolutionary — including clas- The Indian Supreme Court is not a constitutional
sically socialist — and Hindu and Gandhian provi- court alone. It is a successor not only of the Federal
sions.”15 Mehta explains the teleological nature of Court set up under the 1935 late colonial constitu-
part IV thus: “This constitutionally enshrined vi- tional statute, but also of the Privy Council located
sion of the future is what has often been seen as in London, which had, throughout the colonial pe-
implying an activist and capacious state, respon- riod, the discretion to entertain and decide all In-
sible for the eradication of poverty, undoing the dian cases as the final court of appeal. Most impor-
stigmas of casteism, improving public health and tant, the Supreme Court brought into being by the
education, building large industry, facilitating Indian Constitution in 1950 acquired a new origi-
communication, fostering national unity, and, nal jurisdiction — to hear writ petitions to enforce
most broadly, creating conditions for the exercis- fundamental rights against the state. Insofar as it
ing of freedom.”16 But this freedom itself needed decides disputes between the central government
to be postponed and seen “as a future prospect” and the states and between states, it also func-
that would come about as a result of the project of tions as a federal court. And insofar as it has the
social revolution. The Indian Constitution would power to grant “special leave to appeal” under Ar-
make the assertion of freedom conditional on ticle 136, it can hear any appeal from any court in
achievements that could be at best prospective. As India.
Mehta argues, “The successful culmination to free The granting of this last power led to an in-
oneself from imperial subjection led almost im- teresting debate in the Constituent Assembly. One
mediately to freedom itself becoming a subsidiary of the members of the assembly, Pandit Thakur
concern; that is, subsidiary to national unity, social Das Bhargava, discussed the court’s powers with
uplift, and a concern with recognition.”17 regard to Article 136 in terms that would come to
The tension between this implicit ideologi- haunt later.18 I quote below Bhargava’s remarks on
cal devaluation of freedom, which had been en- Article 136, which was then numbered 112, and Ar-
shrined in the Fundamental Rights chapter and ticle 142, then numbered 118.

12. Ibid., 26. 15. Austin, Working a Democratic Constitution, 18. The full text of this debate can be found at
8. parliamentofindia.nic.in/ls/debates/vol8p16a.
13. Arendt, On Revolution, 108.
htm.
16. Mehta, “Constitutionalism,” 20.
14. Mehta, “Constitutionalism,” 27.
17. Ibid., 17.

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 317

Our Supreme Court shall be fully omnipotent as potentially despotic power ensured its survival.
far as a human court could be and it shall have Indeed, another prominent Constituent Assembly
all kinds of cases. . . . My humble submission is that member even called the Supreme Court a poten-
article 112 is the remnant of the most accursed political
tial “Frankenstein monster.”21
right of the divine right of kings. At the same time the
The “divine” powers of the Supreme Court
jurisdiction of the article is almost divine in its nature,
would, however, remain dormant for the first three
because I understand that this Supreme Court
will be able to deliver any judgment which does decades of its existence but would be key to the
complete justice between States and between the court’s new political role in post-­Emergency India.
persons before it. If you refer to article 118, you Before we move on to this political history, a brief
will find that it says “The Supreme Court in the introduction to the structure of the Indian judi-
exercise of its jurisdiction may pass such decree or cial system is necessary. Robert Moog, an emi-
make such order as is necessary for doing complete nent sociologist of Indian law, provides this useful
justice in any cause or matter pending before it, summary:
and any decree passed or order so made shall be
enforceable throughout the territory of India in India’s judiciary is a three-­t iered, integrated sys-
such manner as may be prescribed by or under tem. The Supreme Court which sits in New Delhi,
any law made by Parliament.”19 So far so good: but is the only all-­India forum. . . . High Courts stand
my humble submission is that the Privy Council at the head of the judiciary in each state. . . .
also, which as a matter of fact belonged to Great These are the intermediate appellate courts in
Britain and which was a sign of our judicial domi- the system, but they also have writ jurisdiction. . . .
nation by the British, even that had very wide pow- The third tier is the district-­level courts. . . . De-
ers and proceeded to dispense justice according spite India’s federal system of government, the
to the principles of natural justice. What is this court system is integrated in the sense that there
natural justice? This natural justice in the words is no bifurcation between state and federal judi-
of the Privy Council is above law, and I should ciaries. These three tiers form a single hierarchy
like to think that our Supreme Court, will also be and administer both state and federal laws.22
above law, and I should like to think that our Su-
It’s interesting to note here, in light of the future
preme Court will also be above law in this matter,
in this sense that it shall have full right to pass growth of PIL ostensibly as a form of accessing the
any order which it considers just; and in this light. Supreme Court, that a member of the Constituent
I beg to submit before the House that this is a Assembly had suggested that “those citizens who
very important section and gives almost unlim- are so poor as not to be able to move the Supreme
ited powers and as we have got political swaraj, Court, should be enabled under proper safe-
we have judicial swaraj certainly. . . . Thus the Su- guards, of course at the cost of the State, to move
preme Court will be in this sense above law. I want the Supreme Court in regard to the exercise of
that this jurisdiction which has been enjoyed by
any of these fundamental rights.”23 Such a simple
the Privy Council may be enjoyed and enlarged by
means to provide access to the Supreme Court to
our Court and not restricted by any canon or any
provision of law.20 (my emphasis)
the indigent was on nobody’s agenda at the time.
But over time, the court’s relative inaccessibility
We see here a recognition of the “accursed” emerged as the stick to beat it, as we shall see, with
genealogy of the vast powers given to the Indian long-­term consequences.
Supreme Court, making it in a sense “above the
law.” But the knee-­jerk need to nationalize this

19. See Dr. R. Prakash, “Complete Justice under or matter” because “the Supreme Court is in- inal or revenue.” See parliamentofindia.nic.in/
Article 142,” (2001) 7 SCC (Jour) 14. www.ebc-­ tended in this country to serve the functions ls/debates/vol8p16a.htm.
india.com/lawyer/articles/2001v7a3.htm. of the King in some other countries where he
21. T. T. Krishnamachari, quoted in Dhavan,
is the fountain-­head of all justice. Here, there
20. H. V. Pataskar from Bombay responded to “Judges and Indian Democracy,” 314.
is no King, and naturally therefore we must
Bhargava and supported Draft Article 112, as-
have some independent body which must be 22. Moog, “Judicial Activism,” 271.
serting its need in the language of an archaic
the guardian of administration of justice and
sovereignty. “The Supreme Court may, in its 23. Comments by N. G. Ranga, Constituent As-
which must see that justice is done between
discretion grant special leave to appeal from sembly of India, vol. 3, book 1, 29 April 1947. In
man and man in all matters whether civil, crim-
any judgment decree or final order in any cause Banerjee, Constituent Assembly of India.

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318 Comparative Studies of South Asia, Africa and the Middle East • 34:2 • 2014

The Great Constitutional Conflict: 1950 – 77 the first of many, was Justice Gajendragadkar. Dha-
The constitutional provisions underlying the pow- van describes his approach as being “to assure the
ers of the higher Indian judiciary would come into government that judges would strive for social jus-
play immediately after the Constitution came into tice by playing a supportive role in empowering
force on 26 January 1950, with the legal battles on the government to achieve its goals.”30 The court,
land reform — t he signature postindependence in this period, repeatedly upheld the Parliament’s
program meant to bring about the promised so- absolute right to amend the Constitution.
cial revolution. The first move came on 5 June This compact imploded in 1967, when the
1950, when the Bihar High Court struck down as Supreme Court gave a decision in I. C. Golaknath
unconstitutional — a s a violation of the right to v. State of Punjab that would bar any amendment
property — a law enabling the government to take of the Fundamental Rights chapter in the Consti-
over zamindars’ estates without compensation. tution. The rationale for this decision had been
Nehru’s response to this judgment was immediate explained by Justice Hidayatullah in an earlier
and extreme. The first constitutional amendment minority decision from the Gajendragadkar era,
was pushed through Parliament, which would, where he wrote, “The constitution gives so many
among other things, declare land-­reform statutes assurances in part III [the Fundamental Rights
beyond the scope of judicial review.24 The mood of chapter] that it would be difficult to think that
the moment can be gauged from Nehru’s famous they were the plaything of a special majority. To
comment in Parliament while debating the amend- hold that would mean prima facie that the most
ment: “Somehow we have found that this magnifi- solemn part of our constitution stands on the same
cent constitution that we have framed was later footing as any other part.”31 This time around, in
kidnapped and purloined by the Lawyers.”25 The 1967, the court was taking on an apparently much
First Amendment implied, according to an apoc- weaker Congress party, with Indira Gandhi as the
ryphal statement by a later chief justice, that “the new prime minister. But this turned out to be a
Indian Constitution became the only one that con- miscalculation of Himalayan proportions. In re-
tained a provision providing for protection against sponse, Mrs. Gandhi not only passed constitu-
itself.”26 The more the Supreme Court fought for tional amendments to reverse the recent dictum
a higher market-­value compensation for the land- of Golak Nath that had made fundamental rights
lords, the stronger Nehru’s response was: he kept unamendable; she also launched a ferocious politi-
amending the Constitution to reverse court deci- cal attack on the court itself.
sions.27 According to the eminent legal scholar Thus began what Austin would call “the
Rajeev Dhavan, by the mid-­1950s the courts had great war, as distinct from earlier skirmishes, over
“backed off — but gracefully, without wholly sur- parliamentary versus judicial supremacy.”32 For
rendering their power of judicial review.”28 What the next six years, there would be many moves
emerged from the episode was a détente with the and countermoves by the two sides. The court
court and an embrace of what Dhavan calls “Neh- would declare unconstitutional some of Mrs.
ru’s Planning Commission model of law and social Gandhi’s key “socialist” political measures of the
change.”29 This was very much of a piece with the time — bank nationalization, withdrawal of privy
then dominant modernization theory and its ap- purses, and indirect control of private newspapers.
proach to “law and development,” which privileged Her response was to launch a massive political
the state’s desire to support social engineering campaign against the Supreme Court, casting it as
through law. The lead figure in this modus vivendi, antisocialist and pro-­property. She was reelected

24. See Menon, “Citizenship and the Passive 27. See Dhavan, “Governance by Judiciary,” 31. Sajjan Singh v. State of Rajasthan, 1965 1 SCR
Revolution.” 78 – 79. 762.

25. Parliamentary Debates 12 – 13 (Part II) Col. 28. Ibid., 79. 32. Austin, Working a Democratic Constitution,
8832 (16 May 1951). 198.
29. Dhavan, “If I Contradict Myself,” 56 – 57.
26. Austin, Working a Democratic Constitution,
30. Dhavan, Governance by Judiciary, 85.
85.

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 319

with a huge majority in 1971, with enough political ing days, between October 1972 and March 1973.36
capital to radically amend the Constitution, pack The judgment that emerged on 24 April 1973 was
the court, and declare the need for “a commit- a puzzle, with eleven opinions running over more
ted judiciary.” A series of amendments — the 24th, than six hundred pages. Nine of the judges made a
25th, and 26th — followed. The first undid Golak special statement clarifying the view of the major-
Nath and restored Parliament’s absolute power ity, with its famous dictum that Parliament could
to amend the Constitution. The second replaced not alter the basic structure or framework of the
the term “compensation” in the right to property Constitution. And while Parliament could hence-
with “amount,” thus restricting the possibility of forth amend any part of the Constitution, the ju-
judicial review of land reform. The third amend- diciary could declare the amendment unconstitu-
ment was truly radical. It inserted a new article tional if it violated the “basic structure.” This was
(31C) that restricted judicial review of all laws that the enduring modus vivendi achieved by the court:
claimed to implement two key classically socialist conceding a lot, but retaining its final say. It stands
directive principles: Articles 39(b) and 39(c). Vio- as binding precedent to this day, with the prospect
lation of the fundamental rights of equality, free- of its being reviewed receding every year.
dom, and property could no longer be the basis for To return to 1973: Mrs. Gandhi’s response to
challenge, as per this amendment. The architect the Kesavananda judgment was swift and devastat-
of Mrs. Gandhi’s onslaught on the judiciary was an ing. The next day, when the new chief justice was
ex-­communist lawyer named Mohan Kumaraman- to be appointed, she chose to violate, for the first
galam. He relentlessly attacked the court’s defense time in India, the principle of seniority conven-
of the right to property as elitist and instead de- tionally followed in the appointment to this con-
manded a “committed judiciary.” While debating stitutional office, superseding three of the senior-­
Article 31C in Parliament, Kumaramangalam di- most judges who had been part of the majority
rectly attacked Supreme Court judges as coming in Kesavananda, and thus compelling all three to
from “the class of men of money and property . . . resign immediately. This was a frontal attack on
that undemocratic collection of very respectable the Supreme Court as an institution, and it was
gentlemen.”33 Mrs. Gandhi was now at the height the lowest point in executive-­judicial relations in
of her political powers, and it would require some- postindependence Indian history. It is important
thing special from the Supreme Court to take to note here the defense that her then chief ideo-
her on. logue, Kumaramangalam, gave for this decision.
A truly special judicial response did emerge He told the Parliament that they wanted a “for-
in the next crucial battle of this great war: the case ward looking judge” and not a “backward looking
of His Holiness Swami Kesavananda Bharati v. State judge.”37
of Kerala.34 This was to become the most influen- By June 1975, when Emergency was declared
tial constitutional case in Indian history. The legal by Mrs. Gandhi, the negative political discourse
challenge was to the constitutionality of the far-­ about the court as an impediment to socialism
reaching post-­1971 amendments: Did Parliament was only strengthened further. The Emergency
have absolute power to amend the Constitution, or regime constituted a committee to review the Con-
could its amending power be subject to judicial re- stitution, resulting in the 42nd Amendment. With
view? This was the “inner conflict of constitutional- fifty-­nine different clauses, this was to be the most
ism”35 — political theater at the highest level. It was thoroughgoing and radical constitutional amend-
heard by a bench of thirteen judges, the largest in ment in Indian history. Its official aim, according
the history of the Indian Supreme Court, who met to the “Statement of Objects and Reasons,” was
daily for four and a half hours, over seventy work- “to spell out expressly the high ideals of social-

33. Ibid., 245 – 46. 35. See Mehta, “The Inner Conflict of Constitu- 37. Ibid., 283.
tionalism.”
34. While the literature on this case is vast, for a
book-­length study see Krishnaswamy, Democ- 36. See Austin, Working a Democratic Constitu-
racy and Constitutionalism. tion, 264.

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ism, secularism and integrity of the nation . . . and born. With the birth of PIL, says Dhavan, the
give . . . [the Directive Principles] precedence over court claimed a partnership with government. “It
those Fundamental Rights that had frustrated the seemed to be arguing that these duties could not
Principles’ implementation.”38 It declared India be deferred or left to the legislature. [The Direc-
a “socialist” and “secular” republic. Not only was tive Principles] had to be dealt with immediately.
Article 31C (that had been struck down by Kesava- Of course, they had to be grounded in some guar-
nanda) reintroduced, it was expanded to provide anteed constitutional or statutory right. But an
that all laws declared to be implementing any of underlying sense of purpose was derived not from
the directive principles, and not just articles 39(b) these entitlements, but from the goals of the Consti-
and (c) as earlier, could no longer be declared in- tution.”43 It is important to note here that even the
valid even if they violated the fundamental right new rights discourse of the Supreme Court in the
to equality, freedom, and property. The shocked post-­Emergency period was more embedded and
opposing voices included H. M. Seervai, who had interested in Directive Principles than Fundamen-
only recently been the central government’s lead tal Rights. Dhavan continues, “[The judges] de-
counsel in Kesavananda. Arguing against the doxa clared a strong constitutional commitment to what
of the times, he wrote, “It was an unfounded as- they claim to be the primary purpose of the Con-
sumption, based on the battles over the right to stitution, enlarged the role of activist citizens, and
property, that the Directive Principles were to se- became the mediator of both the values and pro-
cure social justice and the Fundamental Rights cesses by which this purpose can be achieved.”44
were ‘mere selfish individual rights.’ ”39 An analogy can be drawn here from Kaviraj’s essay
Directive Principles had by now explicitly about Indira Gandhi’s politics, where he argues
come to be deployed not just as general consti- that even the fierce opposition to Mrs. Gandhi,
tutional goals, but effectively as resources to em- the response of Jai Prakash Narayan, and the Sam-
power the legislature and immunize it from judi- poorna Kranti45 movement were actually carried
cial review.40 This approach put the judges under out in the language of populism adopted by her.
considerable pressure. As Dhavan calls it, “the The Supreme Court, too, in search of a new le-
1971 – 7 6 empowerment/immunisation” approach gitimacy, responded by mimicking Mrs. Gandhi’s
to Directive Principles placed the judges in an populism. The battle henceforth was between the
uncomfortable bind. Confronted by an appeal to competing populisms of the court and the political
lofty ideals, they found themselves “carried away class. I would argue that the Supreme Court even-
to concede absolute powers to the government in tually did become a “committed judiciary” with
the name of socialism and to abnegate their own the path it adopted in the early 1980s. There was,
judicial role.”41 The Supreme Court had to respond however, one vital difference from this early 1970s
and out-­r adicalize the political masters, but the ideal — the court itself became the self-­proclaimed
ground for this battle had been already laid by the vanguard of the social revolution.
apotheosis of the Directive Principles. As Dhavan
argues, the post-­Emergency Supreme Court ended Understanding the Rise of PIL
up performing this maneuver by declaring that the The axiomatic explanation for the rise of PIL in
Constitution did not just have a basic structure, India has been that it was an attempt by the post-­
“but a distinct socioeconomic goal of ameliorat- Emergency Supreme Court to restore its image in
ing poverty and achieving an egalitarian distribu- the public eye after the crisis of legitimacy created
tive justice.”42 The court declared its constitutional by its ignominious role during the Emergency. Yet
duty to fulfill the Directive Principles. why did the court have to respond to that crisis of
Such was the context in which PIL was legitimacy in the form of PIL? To understand why

38. Ibid., 370. 41. Ibid., 415. 44. Ibid.

39. Ibid., 367. 42. Ibid. 45. “Sampoorna Kranti” literally means “Total
Revolution.”
40. Dhavan, “The Constitution as the Situs of 43. Ibid., 416.
Struggle,” 414.

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 321

this might not be so obvious, let us first rehearse and Chandrachud) also heard this case,49 giving
the court’s infamous Emergency performance. them a neat opportunity to exorcise the demons
The most widely known instance of its capitulation of the Emergency and depart from their igno-
during this period was in the Habeas Corpus case,46 minious judicial approval of the clampdown on
where the court upheld the validity of the draco- personal liberty. The Supreme Court however did
nian Maintenance of Internal Security Act (MISA). no such thing. It upheld NSA unanimously. The
A five-­judge bench of the court decided by a four path not taken here is as interesting as the path
to one majority that habeas corpus rights had taken — that of PIL. Even where the court did take
been entirely suspended by the Emergency and on Mrs. Gandhi, like in the Minerva Mills deci-
that even a mala fide detention order could not be sion, which struck down Article 31C as unconsti-
challenged before the courts.47 In the hall of in- tutional, the language of the court — particularly
famy of Indian Supreme Court, these observations Justice Bhagwati’s partially concurring judgment — 
by Justice Beg in this case will always hold pride of mirrored Mrs. Gandhi’s language in astonishing
place: “The care and concern . . . bestowed upon fashion: both declared Directive Principles part of
the welfare of detenus who are well housed, well-­ the “basic structure” of the Constitution.50 One of
fed and well-­treated is almost maternal.” The good the interesting corollaries is that, as Pratap Bhanu
judge even felt gratuitously obliged to defend the Mehta argues, “all the Supreme Court’s celebrated
internal Emergency, holding that it was justified ‘activist’ decisions . . . stemmed from a concern for
“not only by the rapid improvements” in the seri- equality rather than civil liberties. Indeed, civil
ously dislocated national economy and discipline, liberties concerns have been palpably weak in In-
but also because “the grave dangers of tomorrow, dian courts.”51 Throughout the post-­E mergency
apparent to those who have the eyes to see them, era, the concern has rarely been negative liberty
have been thus averted.”48 Justice Beg was soon from the state; much more often, it is positive lib-
duly rewarded and made chief justice by Mrs. Gan- erty through the state. The court was henceforth
dhi’s regime, superseding Justice Khanna, the only more interested in expanding its role through ju-
judge with the courage of conviction to give a mi- dicial populism than in performing its classical
nority decision in this case. function of judicial review. The legacy of MISA was
The Habeas Corpus case is generally con- not really undone; instead a new front was opened,
sidered the lowest point in the history of the In- that of PIL. Indeed, the court’s cavalier approach
dian Supreme Court, and it is the damage done to basic civil liberties has continued in the post-­
to its reputation by this judgment that the post-­ Emergency period, and it has consistently upheld
Emergency court is often said to be trying to undo the so-­called antiterror statutes and other draco-
through PIL. But this still begs the question: Why nian laws throughout this period. In fact, I would
did the post-­Emergency court choose to craft their argue that the delegitimization of legal procedure
political response through the innovation of PIL that accompanied the rise of PIL in India, as we
when, strictly speaking, there were other means shall see, has actually made it easier for courts
available? Soon after Mrs. Gandhi was reelected to justify and overlook departures from the basic
in 1980, she reintroduced a preventive detention principles of criminal procedure that mark such
statute called the National Security Act (NSA), statutes.
which took the place of the now-­repealed MISA. Dhavan, writing in 1987, called the emer-
It was challenged before the Supreme Court im- gent PIL turn optimistic in the face of a wide-
mediately. Some of the judges who were part of spread state of lawlessness.52 But in a sense, the
the majority in Habeas Corpus ( Justices Bhagwati legal constituencies for PIL and for “state lawless-

46. A. D. M. Jabalpur v. Shivkant Shukla, 1976 2 49. A. K. Roy v. Union of India, 1982 1 SCC 271. State oppression, argues that as long as the
SCC 521. For a brilliant in-­depth analysis of this legal machinery retains some autonomy of
50. See the discussion in Mehta, “The Inner
judgment, see Baxi, Indian Supreme Court and standards and decision-­making, State law is
Conflict of Constitutionalism,” 198 – 200.
Politics, 79 – 115. up for grabs in the hands of those, including
51. Ibid., 205. the disadvantaged, who acquire the skills to
47. Ibid., 112.
use it.” Dhavan, “Means, Motives, and Oppor-
52. His full statement was “A more optimistic
48. Ibid., 113. tunities,” 745.
approach, undeterred by the dismal reality of

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ness” largely diverged. The latter was the concern derstood as “the imposing of effective inhibitions
of civil liberties lawyers who typically worked in upon power and the defence of the citizen from
lower courts, dealing with trial litigation in crimi- power’s all-­intrusive claims” was “an unqualified
nal cases, as opposed to the high-­profile Supreme human good.”57 Thompson retained a defensive
Court and High Court lawyers who wanted to in- idea of law. With PIL, on the other hand, recourse
fluence policy at the highest level through PIL. It is to law is not a defensive strategy but a possible so-
quite rare that these two subspecies of lawyers over- lution. Here the law is not the oppressor but the
lap, and the divergence has only increased over the very source of social revolution. The romance of
years. Very rarely will one find that a civil liberties the Indian state as being able to reform the un-
lawyer has filed a PIL. In fact, in the sociology of ruly social gets strengthened through PIL. The
the Indian legal profession, there is a clear distinc- eminent lawyer Shyam Divan argues that “until the
tion between trial lawyers and appellate lawyers. 1970s, the role of the court was largely ‘negative’ — 
Trial lawyers do, of course, get involved in appeals to confine governmental action within constitu-
in the higher courts, but they are rarely optimis- tional bounds.”58 With PIL, as Dhavan suggests,
tic enough to engage in policy making through the concern becomes distributive justice. “It [the
litigation. On the other hand, PILs are filed as court] can no longer fall back on a conservative
an incitement for judges to enter the legislative concern for protecting life, liberty, property and
domain. Pious homilies (generally in the form of religious freedom. Rather, it needs to think about
“guidelines”53) get delivered in such PILs, allowing those social welfare, social justice and civil and
the appellate court to sound morally superior, al- political rights which might give its vast millions
though these guidelines hardly ever travel to the a real chance both to withstand the pressures of
adjudicative domain. And this trend of “continual India’s unruly acquisitive capitalism and to fight
and clamorous legislative activity”54 through PIL is for their individual and collective entitlements as
very much part of the story of law as panacea that full citizens and not just beneficiaries of welfare.”59
emerged in the early 1980s, with the growing trend
...
of social reform through law reform that has been
the subject of much recent critical reflection.55
“The People” in Judicial Discourse
It is useful here to return to Dhavan’s ac-
In 1979, when PIL, as we know it now, had barely
count of the rise of PIL. “[A] new public interest
been born, Baxi reflected on the Indian Supreme
or social action law movement has developed,” he
Court’s new avatar in a lecture. He said, “There are
writes, “led, essentially, by middle-­class judges,
more references to the people in the constitutional
academics, newspapermen and social activists who
decisions of the Court since the Sixth General
feel that law can be ‘turned around’ to provide so-
Elections [of 1977] than ever before in the Court’s
lutions for the poor.”56 Notice here that the talk
history.”60 He is here referring to the period be-
is of a solution to the problems of the poor, not
tween 1977 and 1979 — already “the people” appear
of taking the law off their backs so it gives them
more often in the court’s language in these two
less trouble. This is what makes it optimistic, and
years than they had in its prior twenty-­seven years
part of the law reform trend of the post-­Emergency
of existence. The post-­Emergency court, Baxi ob-
period. This new optimism was fundamentally dif-
served, was “seeking legitimacy from the people,”
ferent from E. P. Thompson’s famous argument
and “in that sense (loosely) there are elements of
that even with the existence of “the black act” in
populism in what it is doing.”61
eighteenth-­century England, the “rule of law” un-

53. For an early critique of the judicial tendency 55. See Agnes, “Protecting Women against Vi- 59. Dhavan, “Means, Motives, and Opportuni-
to issue guidelines in PIL cases, see Justice M. olence?,” and Menon, Recovering Subversion. ties,” 746.
Hidayatullah, “Highways and By-­lanes of Jus-
56. Dhavan, “Means, Motives, and Opportunities.” 60. Baxi, Indian Supreme Court and Politics,
tice,” (1984) 2 SCC (Jour) 1.
246.
57. Thompson, Whigs and Hunters, 266.
54. Foucault, The History of Sexuality, 144.
61. Ibid., 126.
58. Divan, “A Mistake of Judgment.”

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 3 23

Lloyd and Susanne Rudolph, writing in 1981, gency, this issue reemerged in State of Rajasthan v.
discussed the 1970s battle of “Judicial Review Union of India. In 1977, the newly elected Janata
versus Parliamentary Sovereignty” as revolving Party government dissolved all the Congress-­r uled
around the question of who spoke for the people: states’ assemblies, invoking Emergency powers
“Judges of state high courts and of the Supreme under Article 356. Called on to decide the con-
Court claimed to speak from the authority of the stitutionality of such a dissolution, the Supreme
written constitution, which expressed the people’s Court enthusiastically supported it and, interest-
will as well as the fundamental law of the land. Rul- ingly, based its decision on the sentiments of the
ing Congress governments claimed to speak with people — as expressed in the recent parliamentary
the authority of constitutional majorities in parlia- election results of 1977. J. Bhagwati was the most
ment, based on electoral mandates that expressed eloquent. Interpreting the electoral mandate, he
the people’s will.”62 We have seen so far why the In- surmised: “There is a wall of estrangement which
dian Supreme Court chose to imitate Indira Gan- divides the Government from the people and there
dhi’s populism to survive her political onslaught. is resentment and antipathy in the hearts of the
We shall now see how the court actually went about people against the Government.” He argued that
developing its legal arsenal to accommodate “the the consent of the people was the basis of democ-
people.” racy, and “when that is withdrawn so entirely and
The ground for this transition to a “people’s unequivocally,” there is “no room for doubt about
court” was prepared in 1973, in the landmark Ke- the intensity of public feeling against the ruling
savananda judgment itself. Justices Hegde and party.” J. Bhagwati continued, “On account of total
Grover, speaking for the majority of the Supreme and massive defeat of the ruling party in the Lok
Court bench in this case, questioned the assump- Sabha elections, the Legislative Assembly of the
tion that the Parliament speaks for the people as a State has ceased to reflect the will of the people
whole, but they still did not claim any access to the and there is complete alienation between the Leg-
people. According to the two judges, islative Assembly and the people.” While the court
had begun to claim rhetorical access to the people,
When a power to amend is given to the people its
contents can be construed to be larger than when
it was still a claim mediated by its interpretation of
that power is given to a body constituted under the election results. And a pattern had been set;
that constitution. Two-­t hirds of the members of a decision disastrous for the institutional viability
the two Houses of Parliament need not represent of Indian federalism was legitimized by the court
even the majority of the people in this country. with hyperbole for immediate pragmatic reasons.
Our electoral system is such that even a minor- Soon after this we see the birth of Public Inter-
ity of voters can elect more than two-­t hirds of est Litigation (PIL). The Supreme Court’s first pro-
the members of either House of Parliament. . . .
grammatic statement about this new phenomenon
Therefore the contention on behalf of the Union
came in 1981. In the Judges’ Transfer case that year,
and the States that two-­t hirds of members in the
the rule of locus standi (“standing” is the Ameri-
two Houses of Parliament are always authorized
to speak on behalf of the entire people of this can legal equivalent) was relaxed, opening up the
country is unacceptable.63 doors of the Supreme Court to “public-­spirited
citizens” — both those wishing to espouse the cause
A spoke had been put in the wheel of parliamen- of the poor and oppressed (who were referred to
tary legitimacy and, in particular, its monopoly as having “representative standing”) and those
on speaking for the people. Soon after the Emer- wishing to enforce performance of public duties

62. Rudolph and Rudolph, “The Struggle over ity opinion in Kesavananda that upheld the a permanent place in the hearts of the people
Stateness,” 107. absolute power of Parliament to amend the and augment its moral authority if it can shift
Constitution, but he shared the new judicial the focus of judicial review from the numerical
63. Kesavananda Bharati Sripadagalvaru and
concern for popular legitimacy: “The Court is concept of minority protection to the humani-
Ors. v. State of Kerala and Anr. AIR 1973 SC 1461.
not chosen by the people and is not responsi- tarian concept of the protection of the weaker
Justice Chandrachud, who would later preside
ble to them in the sense in which the House section of the people.”
over the Supreme Court for most of the 1980s
of the People is. However, it will win for itself
and the concomitant rise of PIL, gave a minor-

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324 Comparative Studies of South Asia, Africa and the Middle East • 34:2 • 2014

(who were said to have “citizen standing”).64 Rep- of the public minded individual as a writ petition
resentative standing in Indian PIL was character- and act upon it. Today a vast revolution is taking
ized by American legal scholar Clark Cunningham place in the judicial process; the theatre of the law
is fast changing and the problems of the poor are
as enabling litigation similar to class-­action suits,
coming to the forefront. The Court has to innovate
except with a nonclass member representing the
new methods and devise new strategies for the purpose
larger group.65 A petitioner under citizen standing,
of providing access to justice to large masses of people
on the other hand, sues not as a representative of who are denied their basic human rights and to
others but in his own right — a s a member of the whom freedom and liberty have no meaning.67
citizenry at large to whom a public duty is owed. (my emphasis)
J. Bhagwati’s judgment in the Judges’ Trans-
We see here a tirade against technicalities and a
fer case was a kind of manifesto for PIL. Bhagwati
plea for adapting the inherited British legal system
took this opportunity to reflect on the question of
to Indian realities. The rhetoric of indigenization
standing as
is mobilized to make a case for legal informalism
of immense importance in a country like India in the form of PIL.
where[, with] access to justice being restricted by Kaviraj has argued that “the evasion of in-
social and economic constraints, it is necessary to
stitutional controls” during Mrs. Gandhi’s rule
democratize judicial remedies, remove technical
was “accompanied by a rhetoric of radicalism — a
barriers against easy accessibility to Justice and
promote public interest litigation so that the large
particularly dangerous combination of a bour-
masses of people belonging to the deprived and geois leader invoking socialist principles to evade
exploited sections of humanity may be able to re- encumbrances of bourgeois constitutionalism.”68
alise and enjoy the socio-­economic rights granted Bhagwati would adapt Mrs. Gandhi’s strategy to
to them and [so] these rights may become mean- the judiciary —  here was a judge invoking “the
ingful for them instead of remaining mere empty poor” to evade constitutionalism, the judge him-
hopes.66 self facilitating a discourse by which legality was
J. Bhagwati makes a statement here that would be constructed as the enemy of justice. Kaviraj has dis-
repeated ad nauseam in later years: cussed analogous political dilemmas more gener-
ally: “The politics of community assertion in India
But it must not be forgotten that procedure is but has created a potential conflict between these two
a handmaiden of justice and the cause of justice
principles of participation and proceduralism. Po-
can never be allowed to be thwarted by any pro-
litical parties representing large communities with
cedural technicalities. . . . The Court would therefore
unhesitatingly and without the slightest qualms of con- a strong sense of grievance have often regarded
science cast aside the technical rules of procedure in the procedures of liberal government as unjustified
exercise of its dispensing power and treat the letter obstacles in their pursuit of justice. Procedures are

64. S. P. Gupta v. Union of India AIR 1982 SC 149. ing their cause and seeking relief for them, 67. Justice Bhagwati emphasized this stand in
The court defined “representative standing” This Court will readily respond even to a letter even more vehement terms in People’s Union
thus, “If a legal injury is caused to a person, and addressed by such individual acting pro bono of Democratic Rights v. Union of India: “We
such person or determinate class of persons is publico.” wish to point out with all the emphasis at our
by reason of poverty, helplessness or disability command that public interest litigation which
65. Cunningham, “Public Interest Litigation in
or socially or economically disadvantaged po- is a strategic arm of the legal aid movement
the Supreme Court of India.” In some early
sition, unable to approach the Court for relief, and which is intended to bring justice within
cases, PILs were filed in the name of a class
any member of the public can maintain an ap- the reach of the poor masses, who constitute
member even though the public-­spirited indi-
plication for an appropriate direction, order or the low visibility area of humanity, is a totally
vidual was the real petitioner (as in Hussain-
writ in the High Court under Article 226 and different kind of litigation from the ordinary
ara Khatoon’s case). In some cases, both actual
in case of breach of any fundamental right of traditional litigation which is essentially of
class members (pavement and slum dwellers)
such person or determinate class of persons, an adversary character where there is a dis-
and public-­spirited individuals (two journalists
in this Court under Article 32 seeking judicial pute between two litigating parties, one mak-
and a civil liberties organization) were among
redress for the legal wrong or injury caused to ing claim or seeking relief against the other
the petitioners, as in Olga Tellis v. Union of
such person or determinate class of persons.” and that other opposing such claim or resist-
India.
Further, in some cases, the court claimed that ing such relief.” People’s Union of Democratic
it “will not insist on a regular writ petition to be 66. S. P. Gupta v. President of India. Rights v. Union of India, 1982 3 SCC 235.
filed by the public spirited individual espous-
68. Kaviraj, “Indira Gandhi,” 1700.

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 3 25

sometimes threatened by the politics of intense [inadequately providing] for the needs of the poor
participation.”69 While the nationalist movement and the weak.”75
initially spoke in the participatory language, the In 1973 the Expert Committee on Legal
first two decades of postindependence politics saw Aid, chaired by the ex-­communist recent appoin-
a clear attempt to suppress it and adopt the pro- tee to the Supreme Court, Justice Krishna Iyer,
cedural path.70 We can see strong parallels to this submitted a report commissioned by the govern-
trajectory in the judiciary. The court had made a ment that “viewed itself as a radical critique of
clear choice with PIL — choosing participation over Indian legal arrangements” and spoke glowingly
procedure. And the language it deployed to justify of nyaya panchayats as part of a larger scheme of
that choice was that of indigenization. legal aid and access to the courts.76 The follow-­up
Emergency-­era “Report on National Juridicare:
The Indigenity of PIL Equal Justice — Social Justice” was headed by Jus-
Later writers on PIL have emphasized this dis- tice P. N. Bhagwati. This report argued that “pan-
course of indigenity and decolonization to estab- chayats would remove many of the defects of the
lish PIL’s status as a “distinctly Indian” legal phe- British system of administration of justice, since
nomenon,71 arguing for instance that PIL “has cut they would be manned by people with knowledge
the umbilical cord between the Indian legal system of local customs and habits.” 77 Galanter would
and its mentor systems in the ‘white’ common law later reflect on how these visions of paternalistic
world”72 and that it “entails reconceptualization indigenous justice, published during the 1975 – 77
of the role of judicial process in at least the Third Emergency, provided the basis for future develop-
World societies.”73 This culturalist maneuver to jus- ments like PIL. As he recounted in 2004, “In the
tify the need for PIL as a peculiarly Indian achieve- Krishna Iyer and Bhagwati reports, the imagery of
ment would be part of its enduring appeal. indigenous justice was combined with celebration
The need for a truly “Indian” jurisprudence of conciliation and local responsiveness under the
achieved through a gesture as grand as PIL had not leadership of an educated outsider.”78
always existed. In 1968, the most well-­known Amer- In an essay written a few years after the Emer-
ican commentator on Indian law, Marc Galanter, gency, Baxi described the role these two judges,
was struck by the fact that for Indian legal profes- later the chief architects of PIL, had played as “le-
sionals, modern Indian law is “notwithstanding its gitimators of the [Emergency] regime”:
foreign roots and origin . . . unmistakably Indian
During the 1975 – 76 [E]mergency, legal aid to the
in its outlook and operation.”74 Mrs. Gandhi’s as- people was one of the key points of the twenty-­
sault on the Indian judiciary in the early 1970s point programme launched by Indira Gandhi,
tried to undo such a consensus. She would use the to which Justices Krishna Iyer and Bhagwati,
indisputable fact of the relative lack of access to themselves deeply committed to the spread of
Indian legal institutions to delegitimize the higher the legal aid movement, readily responded. They
judiciary. Soon after the Emergency was declared, led a nationwide movement for the promotion of
Mrs. Gandhi derided the Indian legal system, say- legal services. They organized legal aid camps
in distant villages; they mobilized many a High
ing, “We have adopted the Anglo-­Saxon juridical
Court justice to do padayatras (long marches)
system, which often equates liberty with property
through villages to solve people’s grievances.

69. Kaviraj, “The Post-­colonial State.” 74. Galanter, “Introduction,” 215. Galanter here settlement bodies with elected members and
relies on a famous public lecture by M. C. Se- democratic fellowship. According to studies, it
70. For a trenchant critique of this postinde-
talvad, India’s first attorney general. was almost moribund by 1970. See Meschievitz
pendence Nehruvian language, see Chakrab-
and Galanter, “In Search of Nyaya Panchayats.”
arty, ‘“In the Name of Politics.” 75. Austin, Working a Democratic Constitution,
348. 77. Galanter and Krishnan, “Bread for the Poor,”
71. Vandenhole, “Human Rights Law,” 155.
794.
76. Galanter and Krishnan, “Bread for the
72. Dhavan, “Ambedkar’s Prophecy,” 27.
Poor,” 793. Nyaya panchayats was a postinde- 78. Ibid., 795.
73. Baxi, “On How Not to Judge the Judges,” pendence attempt at recreating an idealized
233. version of traditional village-based dispute

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3 26 Comparative Studies of South Asia, Africa and the Middle East • 34:2 • 2014

They, through “camps” and lokadalats (people’s colonial nature of the Indian legal system, and
courts), sought to provide deprofessionalized complicated procedures were seen as the principal
justice. They also in their extracurial utterances, problems plaguing the system. Law itself, or rather
called for a total restructuring of the legal system,
legal procedure — especially the standard adver-
and in particular of the administration of justice.
sarial nature of legal proceedings — was perceived
In a sense, their movement constituted a juridical
as the enemy of access to justice.
counterpart of the 1971 Garibi Hatao (eliminate
poverty) campaign, as well as of the Twenty-­Point Thus began, as Galanter and Krishnan have
Programme.79 argued, the phenomenon of “debased informal-
ism” in Indian law.80 While legal aid was neglected
The 42nd Amendment to the Constitution, which and poorly funded, these other institutional in-
was introduced during the Emergency, contained novations were widely adopted. It was not as if
a new Directive Principle titled “equal justice and informal nonstate institutions were given power.
free legal aid.” It read, “The State shall secure that What happened instead was that state institutions
the operation of the legal system promotes jus- themselves were transformed and made to behave
tice, on a basis of equal opportunity, and shall, in according to inchoate ideas of what informal “tra-
particular, provide free legal aid, by suitable leg- ditional” institutions were like. The state’s legal
islation or schemes or in any other way, to ensure institutions were now set to mimic their fantasy of
that opportunities for securing justice are not de- what they imagined an informal institution would
nied to any citizen by reason of economic or other look like.
disabilities.” Anticipating and leading this trend, dur-
Legal aid was to be the means by which to ing the Emergency both Justices Krishna Iyer and
mitigate the expense and the general lack of access Bhagwati “called for thoroughgoing judicial re-
to courts — by making legal aid itself into a direc- forms, minimizing reliance on foreign models of
tive principle. While legal aid ordinarily ought to adjudication, including the system of stare decisis.
have provided access to legal services in courts at They advocated a return to swadeshi jurisprudence
a cost borne by the state, what instead happened including justice by popular tribunals.”81 Bhag-
in post-Emergency India was that the legal pro- wati spoke of the Indian judicial system as being
cess itself was selectively transformed, ostensibly to ill-­suited to “a country where the majority lived in
make it easier for people to access the court. Tri- villages and was ignorant of its legal right.”82 Here
bunals were created in various arenas as replace- we see another symptom of what Kaviraj has diag-
ments to regular courts. While legal aid was meant nosed as the crisis of institutions in India during
to make access to lawyers less expensive or free, that period: “Legitimacy of institutional power
it was decided instead that the judicial apparatus was increasingly giving place to a legitimacy of in-
would be transformed to make it so accessible that dividuals; and perhaps still more significant, the
people could approach them directly. Dhavan saw new rhetoric of socialism, indiscriminately used by
in this trend a desire “to design alternative struc- nearly all political forces, signified something often
tures, processes and normative understanding . . . fatally misunderstood. Socialist rhetoric often gave
to show a far greater proximity to notions of law a respectable cover for the re-­emergence of an es-
and justice in civil society.” The principal means of sentially pre-­c apitalist alphabet of social action.
solving this problem of judicial access was through It looked upon impersonal rules and application
institutional changes: at the lowest level, by creat- of rationalistic norms with derision, as forms of
ing lok adalats, or “people’s courts”; at the interme- ‘bourgeois’ fastidiousness.”83
diate level, by creating tribunals with nonlawyers Justice Bhagwati summed up his PIL agenda
at the helm; and at the highest level, by innovat- in clear populist terms in the Judges’ Transfer case:
ing the concept of PIL. Legal technicalities, the

79. Baxi, “Taking Suffering Seriously,” 113. 81. Baxi, “Taking Suffering Seriously,” 113. “Stare 82. Quoted from Austin, Working a Democratic
decisis” is a Latin maxim that literally means Constitution, 349.
80. See Galanter and Krishnan, “Debased In-
“let the decision stand.” This maxim refers
formalism.” 83. Kaviraj, “On the Crisis of Political Institu-
to the principle of precedent in common law.
tions,” 234.
Swadeshi loosely translates as “autochtonous.”

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 327

It is necessary for every Judge to remember con- most of the early PILs in 1980 – 82 arose out of let-
stantly and continually that our Constitution is ters written by individuals to him in his twin ca-
not a non-­a ligned national charter. It is a docu- pacities as a judge of the Supreme Court and the
ment of social revolution which casts an obliga-
chairperson of CILAS.87
tion on every instrumentality including the ju-
diciary, which is a separate but equal branch of
Early Controversies around PIL
the State, to transform the status quo ante into
a new human order in which justice, social, eco- In this early phase of PIL, a controversy broke out
nomic and political will inform all institutions of over Justice Bhagwati’s actively soliciting petitions,
national life and there will be equality of status a fact that drew attention to the judge-­led nature
and opportunity for all. The judiciary has there- of PIL. Arun Shourie, then editor of the Indian Ex-
fore a socio-­economic destination and a creative press, gave an interview in 1983 where he observed,
function. It has, to use the words of Granville
Austin, to become an arm of the socio-­economic A judge of the Supreme Court asked a lawyer to
revolution and perform an active role calculated ask me to ask the reporter to go to these areas,
to bring social justice within the reach of the com- get affidavits from some of the victims who are
mon man. It cannot remain content to act merely still alive and some of them who were dead,
as an umpire but it must be functionally involved from their families. The affidavits were got [sic]
in the goal of socio-­economic justice.84 compiled, sent and he entertained a writ. Eight
months later someone came to me saying that
He followed it up with a dig at “the British concept the same judge had sent him . . . to ask me to ask
of justicing, which to quote Justice Krishna Iyer the respondent to file such and such information
(Mainstream, 22 November 1980), is still ‘hugged by in a letter through so and so. . . . A third time a
the heirs of our colonial legal culture and shared civil rights activist asked that the same thing be
done. He said the judge had asked him. . . . The
by many on the Bench’ is that ‘the business of a
point that the opponents of the case were mak-
Judge is to hold his tongue until the last possible
ing was that the litigants were choosing a judge.
moment and to try to be as wise as he is paid to As it turns out, some judges were choosing their
look.’”85 To undo such perceived anachronisms, litigants.88
the Committee on Implementation of Legal Aid
Schemes (CILAS) was established in 1980 by Indira From the beginning, the PIL petitioner was a
Gandhi, just back in power, with Justice Bhagwati crutch that judges could rely on to further their
as chair to effectuate his earlier Emergency-­era re- own agenda, but as we shall see, even this crutch
port. On 8 – 9 May 1981, a seminar was organized by soon became unnecessary.
CILAS under his leadership, with many of India’s PIL was primarily a revolution in procedure,
legally active social groups participating. From the and according to legal scholars, its innovative fea-
bench and otherwise, the PIL court under Justice tures emerged in its early years:
Bhagwati “extended to journalists, activists, aca- a. The rules of locus standi have been relaxed.
demics, and anyone else who may have been wit- b. The formal requirements regarding the lodg-
ness to constitutional neglect and lawlessness” an ing of a petition have been simplified.
invitation to participate in this new kind of judicial c. Evidence can be gathered by a commission
process.86 Right from these early years, therefore, appointed by the court.
these occupational groups emerged as PIL’s prin- d. The procedure is claimed not to be of an ad-
versarial nature.
cipal constituency. The fact that the birth of PIL in
e. The court can order far-­reaching remedial
this post-­Emergency period coincided with the rise
measures.
of new social movements and investigative journal- f. The execution of the remedial orders is su-
ism in India is not coincidental. Interestingly, PIL pervised and followed up.
was identified so closely with Justice Bhagwati that

84. S. P. Gupta v. Union of India AIR 1982 SC 149 86. Ramanathan, Review of Judicial Activism, 88. Agrawala, Public Interest Litigation in India,
(para 27). n.p. 16 – 17.

85. Ibid. 87. Baxi, “Taking Suffering Seriously,” 118.

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One commentator on PIL, Wouter Vandenhole, that any such procedural flexibility would be lim-
summarized matters thus: “The first two innova- ited by any contrary statutory provision as well as
tions concern the start of the procedure, the next by “principles of natural justice.” But it was Justice
two have to do with its course, and the last two with Bhagwati’s judgment that carried the day. One
its outcome.”89 could either be charitable here and recall the old
A famous PIL that showcased many of these adage “hard cases make bad law,” or bemoan this
innovations was the 1984 case of Bandhua Mukti fateful departure from constitutionalism “as a ver-
Morcha v. Union of India, filed by an organization sion of precommitment . . . related to an ability not
dedicated to ending “bonded labour.” As analyzed to take courses of action which might offer imme-
in a much-­cited article on PIL from the late 1980s, diate relief but are fraught with dangers of long-­
term calamity,” as Kaviraj calls it.92
When the petition was first received the Court
appointed two lawyers to visit the quarries where
In 1979, Baxi was the first to use the frame-
the bonded labourers were said to be held. This work of “ judicial populism” to explain the then
was followed by a “socio-­legal” investigation of imminent rise of PIL, deploying Edward Shils’s
the area undertaken by an academic, funded definition: “Populism proclaims that the will of
principally by the State government in whose area the people as such is supreme over every standard,
the offending quarry was sited. The defendants over the standards of traditional institutions, over
objected to the admission of this evidence, argu- the autonomy of institutions and over the will of
ing that it was based only on ex parte statements
other strata. Populism identifies the will of the
which had not been tested by cross-­examination,
people with justice and morality.” Interestingly,
nor were any such investigations within any of the
clear-­eyed as Baxi was, he did not view this new
relevant Supreme Court Rules.90
trend as a problem but saw it instead as strategi-
Justice Bhagwati rejected this objection by re- cally opportune. He wrote in the same book that
verting to his standard trope of Indian difference. “the politics of the Court represents the best hope
He argued that insisting on a rigid legal procedure for the millions of Indians for a new constitutional
“in a country like India beset by problems of ‘pov- dawn.”93 He even went so far as to argue that “the
erty, illiteracy, deprivation and exploitation’ would interests of the people require the Court to lead
be to place fundamental rights beyond the reach and the legislature to follow,”94 citing as explana-
of the common man.” In a far-­reaching precedent, tion “the nagging political realities of India.”95
he declared that in such PILs, Many years later, in 1993, Baxi would write about
it was not necessary to be bound by the normal PIL as the court’s response to the executive’s de-
conception of an adversarial trial in which each mand for a “committed judiciary”: “Throughout
party produced witnesses who were then cross-­ the seventies, the executive made its wish public
examined by the other side. . . . The introduc- that the judges and courts should be committed to
tion of such evidence could not . . . be resisted the Constitution and the promise of progress and
by assertions that it was of no evidentiary value justice within it. Now, led by the Supreme Court
since it could not be subjected to direct cross-­ of India, judges and courts have shown their ‘com-
examination. To accept such a conclusion would
mitment’; the executive did not have this kind of
be to introduce the adversarial procedure in a
‘commitment’ in view at the same time, it cannot
situation to which it was totally inapposite.91
repudiate it publicly.”96
Justice Bhagwati’s usual flourish can be usefully In an interview in 2011,97 Justice Bhagwati
contrasted with another concurring judgment by proudly discusses his sole authorship of PIL and
Justice Pathak in the same case, which clarified

89. Vandenhole, “Human Rights Law,” 147 – 48. 92. Kaviraj, “On the Crisis of Political Institu- 95. Ibid., 184.
tions,” 235.
90. Craig and Deshpande, “Rights, Autonomy, 96. Baxi, “Judicial Discourse,” 7.
and Process,” 363. 93. Baxi, Indian Supreme Court and Politics,
97. View the full interview at www.youtube
248A.
91. Ibid., 364. .com/watch?v=OrXO8CAi98E.
94. Ibid., 248.

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the circumstances that led him to invent it. He by the injunction to share in the plight of those
talks of visiting the poor states of Bihar, Orissa, it perceives, it can imagine a redress to their con-
and UP as a judge, of seeing the “stark naked pov- dition that corresponds to the generality of its
erty” there, and of being moved because his justice perspective.”101
had not been reaching them. In what is still the The Indian Supreme Court soon put the po-
most widely cited article on PIL, written soon after litical legitimacy it had accumulated through PIL
its birth, Baxi famously celebrated PIL by argu- to dramatic use. After the gas leak disaster in Bho-
ing that it took “suffering seriously,” as a result of pal in 1984, a complex tort litigation ensued.102 By
which “the Court is being identified by justices as 1987, while the civil suit was still extant in a district
well as people as the ‘last resort for the oppressed court in Bhopal, an appeal was pending in the In-
and the bewildered.’ ”98 This mobilization of suf- dian Supreme Court to decide whether the interim
fering by the Supreme Court through PIL is evoca- compensation of 2.5 billion rupees was legally ap-
tive of what Hannah Arendt called, in the context propriate. This interim relief was meant to address
of revolutionary France, “eloquent pity” as coun- the urgent needs of the victims before the final
terposed to “mute compassion.”99 While the latter compensation amount could be decided by the dis-
“has no notion of the general and no capacity for trict court. But instead of adjudicating this limited
generalization,” the former ends up “depersonal- issue, the Indian Supreme Court in January 1988
izing the sufferers, lumping them together into an presided over a secret final settlement between the
aggregate . . . the suffering masses, et cetera.” Talk- Indian government, as the sole representative of all
ing of Robespierre, Arendt says that even if he the gas victims, and the defendant multinational
company Union Carbide, allowing the company to
had been motivated by the passion of compas-
sion, his compassion would have become pity
get away with the relatively minuscule amount of
when he brought it out into the open where he 470 million dollars.103 Castigated widely for this ap-
could no longer direct it towards specific suffer- parently unethical act, the court went on to give a
ing and focus it on particular persons. What had series of post-­facto rationalizations over the next
perhaps been genuine passions turned into the four years. Veena Das’s analysis of this judicial dis-
boundlessness of an emotion that seemed to re- course reveals how the Supreme Court would per-
spond only too well to the boundless suffering of sistently mobilize “suffering” to perform an “orna-
the multitude in their sheer overwhelming num-
mental function” and justify itself (150). Thanks
bers. . . . Measured against the immense suffer-
to years of PIL, the court was very much at home
ings of the immense majority of the people, the
in the language of suffering and could deploy it
impartiality of justice and law, the application of
the same rules to those who sleep in palaces and masterfully, if cynically. The court legally justified
those who sleep under the bridges of Paris, was the expropriation of the grievance of the victims — 
like a mockery.100 declaring them “ judicially incompetent” — by the
government that had emerged as the surrogate
In Uday Mehta’s gloss on the uses of such pity in
victim (157). The mobilization of “ ‘suffering’ and
Indian constitutionalism, following Arendt, he
‘agony’ ” of the victims “allowed the judiciary to
argues: “Since pity maintains a distance from its
create a verbal discourse which legitimized the
object, it can conceive of the object as embodying
position of the government as guardian of the
an abstraction, or representing a type, such as the
people and the judiciary as protector of the rule
poverty-­stricken or the disadvantaged castes or
of law (159).” Das lays out the justifications given by
the people of India. And because it is not limited

98. Baxi, “Taking Suffering Seriously,” 107. 102. The literature on the litigation around the 103. To put this figure in context, the Indian
Bhopal disaster is vast. Particularly notable are government had originally sued Union Car-
99. Arendt, On Revolution, 85.
Baxi, Inconvenient Forum; Dhanda and Baxi, bide for 3.2 billion dollars in a New York court
100. Ibid. Valiant Victims; and more recently Fortun, Ad- in 1986. One can only agree with Veena Das’s
vocacy after Bhopal. remark that what the Bhopal victims had to
101. Mehta, “Constitutionalism,” 26.
settle for was multinational charity, not multi­
national liability. See Das, “Suffering, Legiti-
macy, and Healing,” 163.

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the court for its strangely hasty settlement: “The each case, behind the public spirited petitioner
first imperative to arrive at the meagre settlement the court could see the faces of particular people
was the ‘suffering’ of the victims. The second im- in urgent need of justice. However, in more recent
perative to do this with complete secrecy, and to years Indian public interest litigation has come to
present the victims with a fait accompli, was the ir- include cases involving matters of general public
responsibility and inability of the victims to under- policy in which the petitioner stands for the entire
stand the issues that affected their lives” (160). Das citizenry of India rather than individual victims of
concludes, “In the judicial discourse . . . every ref- injustice.”104 And in this latter role of a petitioner
erence to victims and their suffering only served to citizen, she was merely an informant bringing an
reify ‘suffering’ while dissolving the real victims in issue concerning the people at large to the court
order that they could be reconstituted into noth- and was no longer the representative of the vic-
ing more than verbal objects” (164). In classic post-­ tims. She could be superfluous once her minimal
PIL language, the court went on to justify itself, role was performed. There was a general trend in
“Legal and procedural technicalities should yield the populist trajectory of the court, which Baxi
to the paramount considerations of justice and usefully summarized thus: “If in the seventies law-
humanity” (171). The constitutional provision that yers and justices achieved a proper conception of
the court invoked to give itself a legal fig leaf in judicial power as people’s power, in the eighties the
this case was Article 142, the same Draft Article 118 SAL movement innovated a more direct, unmedi-
that would literally allow the court to do “complete ated form of people-­judiciary partnership.”105
justice,” which Thakur Das Bhargava had said in The first sign of things to come, indicating
the Constituent Assembly enabled the court to be the changing fortunes of the public-­spirited peti-
“above law.” This provision had never been used tioner, was in 1988. Sheela Barse, a journalist, had
to violate express statutory provisions, but Bhopal filed a case regarding the rights of children in
opened the floodgates, and since then the court prison. Later, Barse wanted to withdraw the PIL,
has routinely deployed its “divine” power. saying that the court had become dysfunctional
and that she was frustrated with the slow progress
The Curious Case of the of the case as a result of repeated adjournments.
Disappearing Public Interest Petitioner J. Venkatachaliah called this withdrawal ap-
After having been around for more than a decade, plication “a walk-­out of the court.” He dismissed
PIL had apparently begun to change. This change Barse’s application for withdrawal after dwelling
is usually explained in ideological terms as coter- on her arguments at length:
minous with the larger changes in India’s politi-
[Her] ground is that the proceedings are brought
cal economy since the 1990s, when liberalization as a “voluntary action” and that applicant is en-
was initiated. While that may well be the case, our titled to sustain her right to be the “petitioner-­
focus here is on a key formal maneuver signifying a in-­person” in a public interest litigation and that
new phase of judicial populism: the PIL petitioner the proceedings cannot be proceeded with after
became an increasingly redundant figure. At the de-­linking her from the proceedings. This again
time of the birth of PIL, the court had needed a proceeds on certain fallacies as to the rights of
public-­spirited petitioner to stand in for the public a person who brings a public interest litigation.
Any reconnection of any such vested right in the
at large. But over a period of time, even this be-
persons who initiate such proceedings is to intro-
came unnecessary, and the court could fold the
duce a new and potentially harmful element in
public into itself.
the judicial administration of this form of pub-
Cunningham, one of the earliest American lic law remedy. That apart, what is implicit in the
commentators on PIL, noted the trajectory of this assertion of the applicant is the appropriation to
change from cases of representative standing to herself of the right and wisdom to determine the
those of citizen standing. In early PIL cases, “in course the proceedings are to or should take and

104. Cunningham, “Public Interest Litigation.”

105. Baxi, “On Judicial Activism,” n.p.

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 331

its pattern. This cannot be recognised. . . . The ion, this is necessary for expeditious disposal of
petition cannot be permitted to be abandoned at the matter and to avoid the focus on the crux of
this stage. Only a private litigant can abandon his the matter getting diffused in the present case by
claims. the appearance of many persons acting indepen-
dently in the garb of public interest.106
The court removed her as petitioner and ap-
pointed the Supreme Court Legal Aid Committee This dispensation of the petitioner in PIL cases has
as petitioner. The Sheela Barse case marked the since become routine. Public-­spirited petitioners
beginning of the process that has since become a now often appear as impediments to justice rather
characteristic feature of PIL: the court claiming than its allies. The court seems to manage just fine
ownership of a PIL case and deciding what direc- without them. A leading commentator on PIL, S.
tion it was to take. Muralidhar, now a judge of the Delhi High Court,
From the mid-­1990s, this process went one has been one of the few voices critical of this trend.
step further. The court now began to wilfully dis- He argues that it defeats the very purpose of the
place the petitioner and appoint a senior advocate PIL jurisdiction and renders petitioners redundant
as amicus curiae to assist it. This happened most as mere informants. He writes, “The petitioners
famously in the Vineet Narain case (relating to po- are then entirely at the mercy of the amicus cur-
litical corruption as indicated in the Jain Hawala iae who as the delegatee of the court’s screening
Diaries). As Chief Justice Verma observed in this power can decide who can or cannot petition the
case: court and what can and cannot be said by them.”107
In effect, these public-­spirited petitioners are de-
Even though the matter was brought to the court
prived of their right to espouse the public cause
by certain individuals claiming to represent pub-
lic interest, yet as the case progressed, in keeping
because of this procedural innovation. The PIL pe-
with the requirement of public interest, the proce- titioner, who might often have greater knowledge
dure devised was to appoint the petitioners’ coun- and understanding of the issue than the amicus
sel as the amicus curiae and to make such orders curiae, is thus silenced without his or her consent.
from time to time as were consistent with public Once petitioners were made dispensable, the
interest. Intervention in the proceedings by every- remit of PILs could be enlarged and extended in
one else was shut out but permission was granted unanticipated directions according to the whims
to all, who so desired, to render such assistance as
of the court. While a new form of PIL had been
they could, and to provide the relevant material
made possible by Vineet Narain, its full implica-
available with them to the amicus curiae for being
tions took some time to manifest themselves. Let
placed before the court for its consideration.
me provide here three revealing examples of the
The appointment of the amicus curiae is recorded unique imbroglios that this new avatar of PIL gave
in one of the interim orders passed in this case: rise to.
Anil Diwan has been requested by us to appear The first of these is the so-­c alled Forest
as Amicus Curiae in this matter. . . . It is open to case, one of the most influential and egregious
108

anyone who so desires, to assist Shri Anil Diwan instances of this new version of PIL, in which forest
and to make available to him whatever material governance for all of India has been taken over by
he chooses to rely on in public interest to enable the Supreme Court and the amicus curiae Harish
Shri Diwan to effectively and properly discharge Salve has been requested by the court to screen all
functions as Amicus Curiae. Except for this mode applications for intervention.109 Any person with
of assistance to the learned Amicus Curiae, we do
any grievance has to first approach the amicus cur-
not permit any person either to be impleaded as
iae and the special body appointed by the court
party or to appear as an intervenor. In our opin-
called the Central Empowered Committee (CEC),

106. Vinnet Narain and Others v. Union of India. 108. T. N. Godavarman Thirumalpad v. Union of 109. Rosencranz et al., “The Godavarman
India, Writ Petition No. 202 of 1995. Case.” Since then, multiple amici have been
107. Muralidhar, “India: Public Interest Litiga-
appointed in the case, though Salve is still the
tion.”
senior amicus.

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which can then place it before the court, at its dis- by the court and the state, thanks to this new kind
cretion. The far-­reaching effects of such a judicial of PIL.111
policy can be gauged from a controversy that arose Another example of the difficulties that
in 2009. This was regarding the nonrecusal of Jus- arise because of this trend of the Supreme Court
tice Kapadia in the case before the Forest Bench appointing an amicus curiae and making the pe-
relating to permission given to Vedanta Alumina titioner irrelevant is provided by the case relating
Ltd. to mine bauxite in the Niyamgiri Hills of Odi- to the miscarriage of justice in five criminal tri-
sha, the traditional home of the Dongria Kondh als relating to some of the most heinous incidents
tribe. Justice Kapadia apparently held shares in during the Gujarat pogrom of 2002. The statutory
Vedanta’s sister company, Sterlite, and announced National Human Rights Commission (NHRC)
it in court as per the 1999 resolution passed in the and the Citizens for Justice and Peace (CJP) led
Chief Justices Conference, which required a judge by Teesta Setalvad were the petitioners in this
to disclose any involvement with a company under case. Here, too, the court chose to appoint Harish
litigation before him. But the resolution also said, Salve as amicus curiae and has paid little attention
assuming a normal adversarial proceeding, that if since to the petitioners. In the court hearings of
no objections were raised by the lawyers for either this case that I attended in 2009, the bench would
party, it would be presumed that the parties have hear only the amicus and the counsel for the Gu-
no objection to the judge. jarat government. To provide a sense of the power
But in this new kind of PIL, as we know, the that the amicus had vis-­à -­v is the petitioner, let
only parties heard are the state and the amicus me quote from Setalvad’s interview with the news
curiae. So, as advocate Prashant Bhushan explains, magazine Tehelka in 2011,
the only lawyers represented in the case were Nearly six years after our criminal writ petition
those of Vedanta Alumina Ltd (the project pro- praying for the transfer of investigation in nine
ponent), Odisha Mining Corporation (the mining major riot cases to the CBI was filed, . . . on 26
lease holder), the Odisha government (the pro- March 2008 . . . the Supreme Court appointed a
moter of the project), the Centre’s Environment SIT. Though it was headed by a retired CBI di-
Ministry (which granted the approval to the re- rector, it comprised . . . Gujarat police officials.
finery), and the junior Amicus Curiae, Uday Lalit When the matter of who would constitute the
(since the senior amicus, Mr. Harish Salve, had a team came up, the CJP on behalf of the victim
retainership from Vedanta). The only lawyer who survivors pleaded that only those officers from
could have objected to Justice Kapadia’s hearing Gujarat who enjoyed reputations of neutrality and
the matter was Sanjay Parikh who was represent- impeccable integrity should be included. But to
ing the tribals in a connected writ petition. He our shock the amicus accepted the names of of-
was, however, prevented from speaking by Justice ficers given by the state of Gujarat without even
Pasayat on the bench, on three occasions when he consulting us. We placed our objections to this
tried to get up to speak. He was told in no uncer- unfair procedure and suggested alternate names
tain terms that the amicus could take care of the but nothing happened.112
interests of the tribals and that he would not be
separately heard.”110 The petitioners were keen here that an indepen-
dent investigation be conducted only by the Cen-
We see thus the removal of representative voices tral Bureau of Investigation (CBI), but Salve did
from PIL proceedings, the assumption being that not think it would be a good idea. The court finally
these voices could be subsumed and represented

110. Bhushan, “Prashant Bhushan’s Reply.” the other side, we have a picture of abject pov- this court thought of balancing development
erty in which the local people are living in Lan- vis-­à-­vis protection of wildlife ecology and en-
111. Meanwhile the court gave its permission for
jigarh Tehsil including the tribal people. There vironment in view of the principle of Sustain-
mining in this case by its old rhetorical strategy
is no proper housing. There are no hospitals. able Development.”
of speaking for the poor: “According to CEC, use
There are no schools and people are living in
of forestland in an ecologically sensitive area 112. Khetan, “Whose Amicus Is Harish Salve?”
extremely poor conditions which is not in dis-
like Niyamgiri Hills should not be permitted. On
pute. . . . Keeping in mind the two extremes,

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Anuj Bhuwania • Public Interest Litigation in Post-Emergency India 333

appointed a Special Investigation Team (SIT) to of Independence Day. It related to the need to in-
independently conduct the investigation in the five terlink various rivers in the country, to deal with
riot violence cases. However, when the SIT’s report the paradoxical situation of floods in one part of
was given to the court, it chose to keep it confiden- the country and droughts in other parts. On 16
tial and give copies to the amicus and Gujarat gov- September 2002, the court, while considering the
ernment alone. No copies were given to any of the said I.A., directed that the application be treated
petitioners. The day after the report was submitted as an independent writ petition and issued notice
in the Supreme Court, the Times of India reported to the various state governments as well as the at-
that “the SIT led by the former CBI Director R. K. torney general for India and passed the following
Raghavan told the Supreme Court that the cele- order: “Based on the speech of the President on
brated rights activist cooked up macabre tales of the Independence Day Eve relating to the need
wanton killings.”113 It was later revealed that the of networking of the rivers because of the para-
Times of India article was based on its interpreta- doxical phenomenon of flood in one part of the
tion of the SIT report that had been leaked to the country while some other parts face drought at
Times correspondent, while the actual petitioners the same time, the present application is filed. It
in the case were not privy to the information. The will be more appropriate to treat it as independent
resultant widespread media reportage made it Public Interest Litigation with the cause title ‘IN
appear as if the report had indicted these NGOs Re: Networking of Rivers __v.__’ Amended cause
rather than the Gujarat government. But because title be filed within a week.”115 Thus, I.A. No. 27 in
of the systemically skewed nature of this PIL case, AQFMY [Writ Petition (Civil) No. 725 of 1994] was
where the amicus and the state were the only par- converted into In Re: Networking of Rivers [Writ
ties with access to the actual report, the state gov- Petition (Civil) No. 512 of 2002]. In the course of
ernment’s misinformation campaign could not be one suo moto case, the court had taken up another.
adequately contested. The first involved the cleaning up of one of India’s
The final logical culmination of this new bigger rivers; the second, piggybacking on the
kind of PIL is that the court entirely does away with first, would be India’s largest engineering project
the requirement of a petition with the widespread if it came through. The latter culminated in the
use of suo moto powers, or as it is called in India, court’s final judgment in 2012, which appointed
“court on its own motion.” Thus, a 1994 Hindustan a committee to execute this project, estimated
Times article on pollution in Yamuna, titled “And to cost 5,60,000 crore rupees in 2002, i.e., a little
Quiet Flows the Maily Yamuna,” led the court to under a hundred billion dollars.
convert it, on its own motion, into a writ petition The reductio ad absurdum of the legal pro-
to clean up the river Yamuna. The case is usually cess had been reached, as presaged by Justice
called “And Quiet Flows the Maily Yamuna,” or Hidayatullah in 1984, when he predicted that
sometimes “AQFMY.” This particular case is still PIL would result in the “annihilation of all pro-
pending after two decades, and the court has been cedure.”116 Whether this new post-­petitioner PIL
supervising a 30 billion rupee project involving the could even be called an adjudicative proceeding at
institution of interceptor drain sewers with the as- all is a moot question. With no procedural norms
sistance of the amicus curiae Ranjit Kumar. to control it, and with even the minimal crutch of a
But even more amazing things have hap- petitioner deemed unnecessary, what was unveiled
pened in this case. While this writ petition was was a new beast, of a kind perhaps unknown in
pending, the amicus curiae filed I.A. No. 27114 in modern legal history. The PIL judges could now
2002, referring to the national address of Dr. A. P. J. give free rein to their ideological predilections;
Abdul Kalam, then president of India, on the eve their awesome power had no limits except their

113. Mahapatra, “NGOs.” 115. See courtnic.nic.in/supremecourt/temp


/512200232722012p.txt.
114. I.A. is an acronym for Interlocutory Appli-
cation. 116. Justice Hidayatullah, “Highways and By-­
lanes of Justice,” (1984) 2 SCC (Jour) 1.

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334 Comparative Studies of South Asia, Africa and the Middle East • 34:2 • 2014

own sense of judgment. As Michel Foucault ar- Cunningham, Clark D. “Public Interest Litigation in In-
gued, popular justice, once reified into a court-­like dian Supreme Court: A Study in the Light of Ameri-
institution, becomes its deformation.117 can Experience.” Journal of the Indian Law Institute 29
(1987): 494 – 523.

References ——— . “The World’s Most Powerful Court: Finding the


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