Public Interest Litigation: The legacy of P.N. Bhagwati
Public Interest Litigation in India (PIL) has been revolutionary in waking the sleeping conscience of the keepers of justice. It can be seen as judicial catharsis in its own right. It marks the beginning of constitutional litigation or ‘judicial populism’ (Baxi).
Public Interest Litigation, loosely drawn from American scholar Chayes’ ‘Public Law Litigation’ opened up the doors of courts to the common man. It ushered in an era of judicial activism or a purge (Desai) of the judges who ruled against the defiant rebels of the emergency. In this article, I attempt to examine the birth of PIL as a catharsis or an atonement of the judicial flip flops committed during the emergency. I want to emphasize on how a judge who was sorry, later paved way for a legal revolution so huge that brought legal aid literally to the doors of the common man.
Judicial Activism: The Post Emergency Purge
The colonial vestiges that sculpted the framework of the Indian Constitution had kept justice to be the preserve of the propertied or the wealthy. The dynamics of the executive and the judiciary would later be tested (Dhavan)—either working infamously in complete consonance with each other, as in the ABD Jabalpur case, or in complete isolation as judicial overreach of the later years. It is perplexing and ironic to note that the same judiciary that had, not so long before the emergency, upheld the basic structure of the constitution, would infringe upon the same principles of liberty, to forever be haunted by the shadow it had cast in its wake. Indira Gandhi’s euphoric garibi hatao appeasement campaign marked the underpinnings of legal aid emerging as the basis of social justice activism.
It was not until the 1980s that the real post-emergency purge or redemption was in order. The unrelenting endeavors of Justice Krishna Iyer and Justice P.N. Bhagwati set up the dawn of a new social revolution. In the Fertilizer Corporation Kamgar case, Bhagwati bravely relaxes the principle of locus standi. From admitting letters to his court, to personally deciding over matters of ‘public interest’, Justice Bhagwati had carved a niche for himself, unwittingly making PIL or social justice or legal activism a ‘philosophical’ prerogative. He would make activism acutely judge based. But that is not to take away from his legacy of many years. He gave birth to epistolary jurisprudence and opened the court’s doors to prisoners, inmates, women’s groups, tribals, underage labourers, peasants, alike. He defiantly fought for the ‘social purpose’ of the constitution. He extended the right to live with dignity. He justified and reiterated a citizen’s right to enforce his/her Fundamental Right and brought out the benign side of justice.
Born Prafullachandra Natwarlal Bhagwati to an illustrious family of lawyers in 1921, Justice Bhagwati presided over some of the most tumultuous years of Indian history. His years as Chief Justice of India (1973-85) are not without paradoxes. If he established himself as a libertarian, it was at the same time that his legacy suffered a major setback. With the Legal Aid Committee, both Justice Iyer and Justice Bhagwati offered an unrestricted legal space to the underprivileged and the disadvantaged. It was Justice Bhagwati who had propounded the concept of socio-economic activism:
When a person or class of persons to whom legal injury is caused by violation of a fundamental right is unable to approach the Court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the Court for relief under Article 32 and also under Article 226 of the Constitution.
As he did to alleviate the plight of bonded laborers in the Bandhua Mukti Morcha case:
Whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of advance or other economic consideration received by him … the state government cannot be permitted to repudiate its obligation to identify, release, and to rehabilitate the bonded labourers…
This set grounds for collective action from the rich and the poor alike—rich for the poor, poor for the poor. Let us examine how the emergency collectively mobilized scores of people to create a collective social reformist space.
Collective Social Activism
In his ‘Cornerstone of the Constitution’, Austin consciously discusses the conscience of the constitution. The post emergency is an era that witnessed the combining of the collective ensemble of lawyers, intellectuals, journalists, NGOs, public spirited individuals, and so on. I call it the collective social activism birthing from the tumultuous times of state repression. This collective activism was the silver lining of the Emergency. It was this collective conscience or activism that gave birth to the reforms movements that followed after. It was a time when a socially conscious and aware coterie of activists, journalists, and civil society took over the political conscience of the nation. This is what epitomizes Bhagwati’s legacy. With the admittance and relevance of PILs from all corners of the nation—a series of articles in the Indian Express on Bihar under trials as a writ—that probably gave birth to investigative journalism, and later the evangelical or the moral journalism of the telly of 2000s, petitions by professors, student groups, ‘green’ lawyers, letters from a detenue, and the other journalistic exposes—new concepts emerged. Such decisions allowed greater political space to the civil society. It set grounds for a collective political consciousness of the nation. Recall, the iconic cases of Public Interest Litigation and social justice activism—Maneka Gandhi Passport case where ‘right to life’ was contextually redefined, custodial violence in police lock ups, M.C. Mehta’s green litigation, Shriram Oleum Gas Leakage case, Bandhua Mukti Morcha, to which I keep returning, the rights of the pavement dwellers, to prison reforms, rights of women at workplaces, and so on, to name a few. The social space expanded to a political space where, the PIL was used singlehandedly to point out to administrative lacunas and corruption of ministers, businesses alike.
This post emergency social activism was premised on the basic principles of litigants or ‘public spirited’ individuals with ‘bonafide’ intentions. However, the new ‘private interest litigation, publicity interest litigation or paisa income litigation (Katju) has added to the already heavy caseload on Indian courts that have maliciously contributed to the shrinking space for the disadvantaged. It no longer represents the disadvantaged scores of the poor.
Quite often judicial activism addresses the non-activism or under-activism of other institutions. The dark hours of the Emergency stimulated a response and opened the space for a social juristic discourse. But, has it resulted in an overreach? Would we be able to appreciate the prophecies of the Public Interest of the people as envisioned and envisaged by Justice Bhagwati and Justice Krishna Iyer? One can perhaps hope that the efforts of such luminaries will not wither away with time and will stand the test of both time and frivolity.
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