CONSTITUTIONAL LAW- I

Epistolary Jurisdiction; Public Interest Litigation and the Indian

PREPARED & SUBMITTED BY,

Lakshmi Raj C

Semester 4

Roll No: 1518

TABLE OF CONTENTS ..................................................................................................................... 2

INTRODUCTION................................................................................................................................. 3

EARLY DEVELOPMENT AND ADOPTION INTO INDIAN JURISPRUDENCE ..................... 4

UNDERSTANDING THE CONSTITUTIONAL BASIS .................................................................. 6

PIL- JUDICIAL RESPONSE .............................................................................................................. 7

EPISTOLARY JURISDICTION AS A BRANCH OF PIL .............................................................. 9

JUDICIAL ACTIVISM -A NECESSARY EVIL ............................................................................. 11

CONCLUSION ................................................................................................................................... 13

2
INTRODUCTION

Access to Justice has been recognized as a fundamental right by the Indian Judiciary.1Article
32 and Article 226 of the Constitution of India establish the citizens’ rights to approach
Supreme Court and High court respectively for violation of fundamental rights. In fact, the
right to constitutional remedies is a distinct fundamental right guaranteed under the
Constitution. The judiciary is revered as the guardian of citizens’ rights and the epitome of
fairness and justice. The rule of locus standi is a legal principle which establish the legal right
of standing of any person before the judiciary. There often occurs instances, where it is
impossible to vest the entitlement to file a suit in a single person or an entity. There may be
also instances, where an aggrieved is unable to approach the court due to sheer incapacity. A
strict adherence to the rule of locus standi in such situations would critically impair one of the
most essential rights of an individual. Recognition of this disability led way to the creation of
a unique remedy by the judiciary. In the modern world, this remedy enjoys popular mandate as
Public Interest Litigation. If the name is any indication, this remedy must be understood as a
response to the litigation instituted in public interest. In a way, this judicial remedy reinforces
the socio-legal obligations that an independent judiciary in a truly democratic society must
maintain and foster.

India has witnessed multiple instances in its distant past, where the remedy of PIL has been
efficaciously utilised by constitutional courts to redress issues of grave public concern. In fact,
such interventions from the judiciary have set excellent precedents, which earned India eminent
approbation from human rights enthusiasts across the world. However, concerns have also been
expressed on whether such public- spirited judicial activism has tended to transgress the fine
line of distinction between judicial and executive functions in a democracy. Recognizing the
pitfalls in the process and plugging them requires mindful collaboration among all wings of
government.

The present essay is a brief attempt to comprehend the development and institution of Public
Interest Litigation in India, the realm of epistolary jurisdiction and the contemporary relevance
of the mechanism. The author seeks to analyse how the remedy can be crafted as a suitable and
moderate measure to empower the citizenry and usher in institutional integrity.

1
Imtiyaz Ahmad v. State of Uttar Pradesh, AIR SC 2012 642 (India).

3
EARLY DEVELOPMENT AND ADOPTION INTO INDIAN JURISPRUDENCE

The concept of PIL took birth in the American Legal System during the 1960s, where it was
developed as a means to ensure representation of traditionally unrepresented classes. The
development of PIL was in response to the general perception that the prevalent legal services
failed to provide adequate legal representation to a significant chunk of social classes. 2 These
classes included the poor, consumers, environmental activists, racial and ethnic minorities.

In India, the development of PIL jurisprudence can be entirely attributed to judicial activism,
driven by an urge to pacify the socio-economic issues facing a vast array of neglected social
classes in the society. J. Krishna Iyer described the development of PIL in India as a “product
of creative judicial engineering”.3 According to Cunnigham, “Indian PIL might rather be a
Phoenix: a whole new creative arising out of the ashes of the old order”.

Unlike the US, where PIL enjoys acceptance as a tool to improve civic participation in
governance, in India, PIL is meant to serve a broader social purpose.4 It has armed the judiciary
to directly intervene and monitor effective redressal of events causing misery and hardship to
the common masses. Thus, the adoption of the remedy in India reflects both judicial prudence
and maturity. Recognizing the unique nature of PIL in India, in comparison with that of the
American system, Prof. Baxi termed the Indian system of PIL as Social Action Litigation
(SAL).5 The Indian model of adoption of PIL has been lauded by internationally acclaimed
Jurists who termed it as the “transformation” of the Indian Supreme Court into the “World’s
most powerful court.”6

In India, in the early periods which followed the enactment of the Constitution, the notion of
Fundamental rights was highly individualistic, and the courts strictly adhered to the principle
that only a person directly affected by the violation of fundamental right has locus standi.7 This

2
Sushmita, The Inception of Epistolary Jurisdiction Law Constitutional Administrative Essay,
https://www.uniassignment.com/essay-samples/law/the-inception-of-epistolary-jurisdiction-law-constitutional-
administrative-essay.php.
3
Omdutt, Role of Judiciary in the Democratic System of India (Judicial Activism under the Supreme Court of
India), 2 GOLDEN RESEARCH THOUGHTS 6, 6-7 (2012).
4
P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. TRANSNAT’L L. 561 (1985).
5
Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 THIRD
WORLD LEGAL STUDIES, http://scholar.valpo.edu/twls/vol4/iss1/6.
6
Clark D. Cunnigham, The World’s most powerful Court: Finding the Roots of India’s Public Interest
Litigation Revolution in the Hussainara Khatoon Prisoner’s Case, in SP SATHE, SATHYA NARAYAN, LIBERTY,
EQUALITY AND JUSTICE: STRUGGLES FOR A NEW SOCIAL ORDER 85-87 (2003).
7
P. P. Craig, S. L. Deshpande, Autonomy and Process: Public Interest Litigation in India, 9 OXFORD J. LEGAL
STUDIES 358, 358-360 (1989).

4
judicial approach is evident in decisions like Chiranjit Lal v. UOI8. Herein, the court held that
shareholders and Corporation are separate legal entities and a claim of infringement of
fundamental right cannot be brought by a shareholder, who is not directly affected by such
violation. The allegation was regarding violation of the right to property under Article 19(1)(f).
The judiciary’s position on the rule of standing changed drastically towards the end of the 19th
century.

The history of PIL in India can be traced back to the post-emergency period, when confidence
in judicial institutions was waning in the eyes of the public.9 The passive response of the
judiciary to the curtailment of fundamental rights during Emergency evoked resentment from
the general public. To regain the lost public confidence, a major step adopted by the judiciary
was a substantial expansion of the right of standing of an individual before the court.10 The
court virtually expanded its jurisdiction beyond its conventional boundaries to adjudicate a
multitude of issues affecting the fundamental rights of people.

The concept of PIL was first discussed by J.Krishna Iyer in Mumbai Kamgar Sabha v.
Abdubhai11, decided in 1976. The case concerned the denial of ex gratia to workers employed
by small businessman in a locality. Their claim for bonus was denied on the basis that such
payment was based on custom or tradition, which did not fall within the Bonus Act. The suit
was filed by the Worker’s Union and one of the claims of the opposing party was that the
petitioners lacked locus standi. Though the decision did not explicitly use the term “PIL”, the
basic principle underlying it was clearly enunciated. The court held that to serve the wider
public interest, the court can liberalize the locus standi principle and ensure equitable access to
justice for the large number of people affected by an arbitrary action (or inaction) of the State
organs. In the eyes of the court, promoting the welfare of workers mandated under Part IV of
the Constitution was the overarching concern, which must be preserved in the case. Hence, the
competence of the Union to represent the workmen was affirmed.

The first case to have successfully employed the PIL mechanism in India is Hussainara
Khatoon v. State of Bihar12. The case involved a habeas corpus petition filed by an advocate of
the Supreme Court, representing 19 undertrial prisoners. The petition pointed to the miserable

8
Chiranjit Lal v. UOI, AIR 1951 SC 41 (India).
9
Holladay, Zachary, Public Interest Litigation in India as a Paradigm for Developing Nations, INDIAN J.
GLOBAL LEGAL STUDIES, 559.
10
Id.
11
Mumbai Kamgar Sabha v. Abdubhai, AIR 1976 SC 1455 (India).
12
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 (India).

5
condition of the prisoners, some of whom is said to have survived in prison even beyond the
term they would have had to undergo, if convicted. The petition was based on articles published
in a newspaper, bringing to light the injustice faced by the undertrial prisoners. By expanding
the rule of standing, the court declared that any public -spirited citizen can petition the court
on instances of violation of fundamental rights based on convincing information regarding the
same. In every such case, the court may grant substantial remedial measures at the preliminary
stage itself to redress the situation. At the final stage of its decision, the court must seek to
preserve the greater interest of justice involved in the matter. ‘It is notable that in this case, the
SC resorted to urgent measures by ordering the immediate release of all the prisoners named
in the petition. The order was justified by J.Bhagwati and J. Koshal by expanding the scope of
Article 21 to include the right to speedy trial.’13 In its final decision, the court ordered long
term remedial measures to ameliorate the conditions of undertrial prisoners in the country.

Over the years, PIL has grown in vigour, upholding the position of the judiciary as the guardian
of fundamental rights.14 Progressive judicial decisions have broadened the scope and
dimensions of this mechanism in India. In 1985, when J. Bhagwati was elevated as the Chief
Justice of India, he heralded several measures to strengthen PIL in India. One of these measures
was the setting up of a special cell in the Registrar’s office of the court to exclusively deal with
letter petitions addressed to the court.

UNDERSTANDING THE CONSTITUTIONAL BASIS

The Preamble to the Constitution, which reflects the conscience of the Constitution makers
affirms achievement of social, economic, and political justice as one of the ultimate goals, the
nation as a collective must seek to attain.15 The Directive Principles of State Policy in the
Constitution considers achieving social justice as the ultimate aim, the State must strive to
achieve. The judiciary is indeed an important part of the State machinery. Taken in this manner,
it follows that by redressing matters of public concern through the mechanism of PIL, the
16
judiciary is performing an important constitutional obligation. Further, the exercise of
jurisdiction through PIL is a constructive extension of the right conferred on citizens under

13
Clark D. Cunnigham, The World’s most powerful Court: Finding the Roots of India’s Public Interest
Litigation Revolution in the Hussainara Khatoon Prisoner’s Case, in SP SATHE, SATHYA NARAYAN, LIBERTY,
EQUALITY AND JUSTICE: STRUGGLES FOR A NEW SOCIAL ORDER 85-87 (2003).
14
Clark D. Cunnigham, The World’s most powerful Court: Finding the Roots of India’s Public Interest
Litigation Revolution in the Hussainara Khatoon Prisoner’s Case, in SP SATHE, SATHYA NARAYAN, LIBERTY,
EQUALITY AND JUSTICE: STRUGGLES FOR A NEW SOCIAL ORDER 85-87 (2003).
15
INDIA CONST. Preamble.
16
P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. TRANSNAT’L L. 561 (1985).

6
Article 32 and Article 226 of the Constitution. Article 32 empowers the Supreme Court to issue
writs for the protection of the fundamental rights of people. Article 32 (1) establishes the
remedy of approaching the Supreme Court by “appropriate proceedings” for the enforcement
of fundamental rights guaranteed under Part III of the Constitution.17 Article 226 grants the
same power to High Courts. The Supreme Court has interpreted “appropriate proceedings”
mentioned in Article 32(1) to mean not just the kind of proceedings, but also the aim of such
proceedings.18 Thus, the manner in which a petition is filed must not obscure the extent of the
constitutional remedies available to an individual under the Constitution. In the administrative
sphere, Judicial review of legislative and executive actions is necessary to nurture the checks
and balance system of governance envisaged in the Constitution.19 Hence, redressal of public
grievances through PIL is an extended utilisation of constitutional remedies guaranteed to
every citizen. It is also an important means to realize the ideals of justice envisioned in the
Constitution. In India, PIL has been recognized as a part of “constitutional litigation” and not
“civil litigation”.20 Broadening of the term “other authorities” in the definition of ‘state” under
Article 12 through numerous judicial decisions has also empowered the judiciary to demand
redressive actions from a wide range of authorities serving public functions.21

PIL- JUDICIAL RESPONSE

Through the mechanism of PIL, the judiciary has addressed multi-dimensional socio-political
issues entailing wide ramifications in the society. From women rights issues to environmental
protection, the scope of PIL in India is ever expanding.

The decision in the Hussainara Khatoon22 case led way to the judiciary deciding on one of the
most brutal cases in its history. The case in point is Anil Yadav v. State of Bihar23, where a
letter from a lawyer in the District Court of Bihar revealing police violence in Bihar Jail on
prisoners by blinding them with acid was taken up by Hussainara Khatoon before the Supreme
Court. A visit of the court Registrar to the District Jail under the directions of the SC revealed

17
INDIAN CONSTI. art.32 cl.1.
18
Aman Hingorani, Indian Public Interest Litigation Locating Justice in State Law 166, DELHI LAW REV. XVII
(1995
19
R Shunmugasundaram, Judicial activism and overreach in India, J SOCIETY FOR ADVANCED LEGAL STUDIES,
UTY. OF LONDON, 22, 22-24 (2007).
20
Pritam Kumar Ghosh, Judicial Activism and Public Interest Litigation in India, 1 GALGOTIAS J. LEGAL
STUDIES 80, (2013).
21
Avani Mehta Sood, Gender Justice through Public Interest Litigation: Case studies from India, 41 VAND. J.
TRANSNAT’L L. 841, 841-842 (2008).
22
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 (India).
23
Anil Yadav v. State of Bihar, AIR 1982 SC 1008 (India).

7
shocking aspects of the situation. At least 33 prisoners were found to have blinded by the police
with needles and acid. The court described the case as one “shocking the conscience of the
mankind” and “a crime against the very essence of humanity”. Immediate orders were passed
to quash the proceedings against the prisoners and ensure measures for their rehabilitation and
treatment. The court ordered speedy criminal prosecution of the officials involved in the case.
The court also asserted the importance of diligently ensuring legal aid under Article 39A of the
Constitution to unrepresented prisoners by the lower courts. The case also revealed a dark face
of the executive authorities, for it came to light that the State Government was an acquiescent
in the perpetration of inhumane act.24

People’s Union for Civil Liberties v. Union of India25, commonly known as the right to food
case saw the Supreme Court take up the cause of access to sufficient food grains for the poor.26
A petition was filed by the NGO PUCL, bringing to the attention of the court the huge number
of starvation deaths occurring in the country, despite State granaries overflowing with food
grains. Reading the right to food into Article 21, the court ordered a rigorous implementation
of Food Disbursement schemes at the State level. An order was also passed to ensure access to
subsidised food for poor families, who lost their sole breadwinners.

In Vishaka v. State of Rajasthan27, recognizing the absence of legislation in the field, the SC
issued binding guidelines to prevent sexual harassment of women at workplaces. The decision
was followed by the enactment of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act in 2013. The case was filed by a group of social activists and
NGOs bringing to the attention of the court, the plight of a women social worker, who was
brutally raped in a village of Rajasthan. The court recognized the lacuna in the extant law to
effectively ensure gender equality and protection of women and registered the prevalence of
the guidelines issued by it until a suitable legislation to counter the issue was introduced by the
Parliament.

The decision of the Supreme Court in striking down Section 377 of the IPC, decriminalizing
homosexuality28 marked a paradigm shift in the realm of gender equality in the nation. It is
notable that the decision was a result of concerted efforts by numerous NGOs, civil action

24
Aman Hingorani, Indian Public Interest Litigation Locating Justice in State Law 166, DELHI LAW REV. XVII
(1995).
25
People’s Union for Civil Liberties v. Union of India, (2001) (Civil, No.196) (India).
26
Holladay, Zachary, Public Interest Litigation in India as a Paradigm for Developing Nations, INDIAN J.
GLOBAL LEGAL STUDIES, 559.
27
Vishaka v. State of Rajasthan, AIR 1997 SC 3011 (India).
28
Navtej Singh Johar v. Union of India (2018) 10 SCC (1) (India).

8
groups and motivated individuals from various walks of life. Similarly, the decriminalization
of adultery was the result of a petition filed by a public- spirited citizen at the Supreme Court.29
Thus, PIL Jurisprudence in India has led the way to remarkable progressive transformations of
the Indian society.

Public Interest Litigations have also played a remarkable role in advancing the cause of
environmental issues. In MC Mehta v. UOI30, a petition was filed as a PIL before the court
expressing concern about the public nuisance resulting from the pollution of river Ganga. The
court took cognizance of the wide lassitude on part of the responsible authorities in performing
their statutory obligations. Recognizing the broader cause of the fundamental right to health
environment of citizens, the court issued immediate measures to prevent pollution of the river
body, which was to be implemented at the local level. Noting that protection and improvement
of natural environment is a fundamental duty under the Constitution, the court demanded
productive steps from the Central Government to improve public awareness on environmental
protection. It was in this landmark case that J.Bhagwati, ruling on behalf of the Constitution
Bench reaffirmed the judicial resolve to increase access of justice by entertaining even letters
written by public spirited citizens on issues of public interest as writ petitions.31 The Judge
remarked that “Procedure being merely a hand-maiden of justice, it should not stand in the
way of access to justice to the weaker sections”.32

An analysis of the above- mentioned case laws clearly reflects the transformative role, the PIL
Jurisprudence in India has come to play in the Indian society. It is notable that the judiciary has
assumed a no barrier, no limit approach while adjudicating PIL cases.

EPISTOLARY JURISDICTION AS A BRANCH OF PIL

While considering the scope of PIL in India, the judiciary was also faced with the dilemma of
ensuring that activists taking up public causes are not put to bear litigation expenses in
approaching a court of law.33 The solution was found in allowing even letters addressed to
courts of law espousing a public cause as a PIL. Thus, developed a transformative form of PIL
in the form of epistolary jurisdiction. In the decision of Janata Dal v. H. S. Chowdhary34, hailed

29
Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676 (India).
30
MC Mehta v. UOI, 1988 SCR (2) 530 (India).
31
Bharat H Desai, A Judge as a Philosopher, A tribute to Justice P N Bhagwati, 52 ECO. & POL. WEEKLY (July
8, 2017), https://www.epw.in/journal/2017/27/web-exclusives/judge-philosopher.html.
32
MC Mehta v. UOI, 1988 SCR (2) 530 (India).
33
P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. TRANSNAT’L L. 561 (1985).
34
Janata Dal v. H. S. Chowdhary, 1991 SCC (3) 756 (India).

9
as “a charter of PIL” and “a golden master key which has provided access to the Courts for
the poor and downtrodden’, the Supreme Court established “epistolary jurisdiction” describing
it as an important tool, which can ensure a “ready response” from the judiciary.35

In Sunil Batra v. Delhi Administration36, the SC directed stringent measures to ensure safety
of prisoners in response to a letter written by a prisoner, which alleged torture by a police
warden on another prisoner to extract money from him through his visiting relatives. The letter
was converted to a habeas corpus petition, and the court issued notice to the State and
concerned officials. An amicus- curiae was appointed to report on the issue. Investigation into
the issue revealed shocking information on police atrocities against the prisoner. The court
expressed remorse at the condition of prisoners in jails and exhaustively discussed prisoners’
rights, which must not evade due attention. The court enlisted comprehensive measures to
protect prisoners’ rights through the decision.

In a subsequent decision of Kadra Pahadiya v. State of Bihar37, the Supreme Court espoused
the cause of prisoners languishing in prisons without even preliminary proceedings completed
against them for 12 or 18 months. The court particularly addressed the cause of four tribal boys
who had been in prison for eight years without any formal indictment. The decision was in
response to a letter addressed to the court by a researcher and social scientist working in Bihar.
While expressing deep concern about the condition of the boys named in the petition, the court
declared the right to speedy trial as a fundamental right, implicit in Article 21 of the
Constitution.

In Sheela Barse v. State of Maharshtra38, a letter written by a journalist alleging assault by the
police officers on women prisoners was considered as a writ petition by the Supreme Court.
Taking cognizance of the situation, the court issued detailed directions to ensure the rights of
an accused both at the time of arrest and during their prison term. The assistance of Legal Aid
Committee as the State level was suggested to ensure effective implementation of the
guidelines. The court even recommended surprise visits by sitting judges periodically to police
lock ups in the city to assess the implementation of the directives.

35
Avani Mehta Sood, Gender Justice through Public Interest Litigation: Case studies from India, 41 VAND. J.
TRANSNAT’L L. 839, 839-841 (2008).
36
Sunil Batra v. Delhi Administration, 1980 SCR (2) 557 (India).
37
Kadra Pahadiya v. State of Bihar, 1981 AIR 939 (India).
38
Sheela Barse v. State of Maharshtra, 1983 AIR 378 (India).

10
S.P. Gupta v. President of India & Ors39, popularly known as the Judge’s Transfer case was a
landmark decision which marked the success of epistolary jurisdiction in India. The case
involved numerous writ petitions filed by advocates before various High Courts demanding
transparency in the process of judiciary appointments. The petitioners demanded disclosure of
a letter circulated between the Law Minister, the Chief Justice of the Delhi High Court and the
Chief Justice of India regarding the transfer and appointment of judges. The petitioners also
addressed a number of issues revealing discrepancies in the process of appointment of judges.
Regarding the locus standi of the petitioners, the court declared that any citizen can petition
the Court on an apparent violation of fundamental rights or breach of public duty arising from
non-adherence to constitutional provisions. Extending locus standi of petitioners in issues
involving public interest was viewed as essential to maintain “rule of law” in the society. The
question of law involved in the case was viewed as a matter affecting the independence of
judiciary, which forms part of the Basic Structure of the Constitution and consequently of great
“public interest”. Hence, the right of the petitioners to approach the Supreme Court on the
matter was affirmed. In its final order, the court also issued a number of measures to be
implemented by the Union Government for redressing the issues raised in the petition.

From the above cases, it follows that the exercise of epistolary jurisdiction by the judiciary has
aided inclusiveness and simplification in the process of accessing justice. The utilitarian
purpose of law is sought to be practically fulfilled through this court invented mechanism.

JUDICIAL ACTIVISM -A NECESSARY EVIL

Article 50 of the Constitution obliges the State to take measures for ensuring separation of
judiciary from the legislature and the executive.40 The independence and supremacy of the
judiciary is sought to be maintained through constitutional mechanisms like Judicial review.
The power of judicial review is conferred on constitutional courts in our country by virtue of
Article 13.41 The vision of the Constitution makers to assign judiciary as an impartial umpire
with the power to filter executive and legislative actions through the constitutional framework
is evident throughout the Constitution. The power of judicial review has been recognized as
part of the Basic Structure of the Constitution.42

39
S.P. Gupta v. President of India & Ors., AIR 1982 SC 149 (India).
40
INDIA CONST. art. 50.
41
INDIA CONST. art. 13.
42
L. Chandra Kumar v. UOI (1997) 3 S.C.C. 261, as cited in Dr. Nishitha Jaswal, Dr. Lakshminder Singh,
Judicial activism in India, BHARATI L. REV. (2017).

11
Judicial activism has emerged as an inevitable feature of any democratic country, which vests
unending powers in judicial organs to oversee legislative and executive actions.43 According
to former CJI J. A.H. Ahmadi, Judicial activism is a “necessary adjunct” of judicial power as
promotion of public interest and not private interest is its prerogative.44 It is inevitable, for the
constitutional obligation imposed on it acts as a prerogative mandating timely and effective
interventions to curb unfettered exercise of powers by the other organs of the State.

It is notable that most cases, where allegations of judicial overreach have been raised involve
situations, where there is a marked absence of constructive actions from the other two organs
of the state. In the words of Justice Bhagwati “Public Interest Litigation in India is primarily
judge-led and even to some extent judge-induced; the product of juristic and judicial activism
of our Supreme Court”.45In the recent years, a spate of PIL cases have come up for judicial
scrutiny which pertain to inaction from the legislature and executive. In such cases, the
judiciary, being the sole resort of ordinary citizens cannot afford to remain passive. In fact,
judicial intervention becomes a necessity in such cases. For instance, progressive judicial
interpretations have meant an expanded consideration of the right to life to include rights such
as right to bail, right to speedy trial, right to dignified treatment in custodial institutions, right
to legal aid in criminal proceedings and right to dignified living.46 Over the years, PIL has
emerged as an important judicial tool to facilitate judicial activism.

Motivated efforts from judiciary in this manner however, often lead to situations where
judiciary oversteps its designated sphere of authority. Such instances have often invited critical
responses from various quarters. For instance, the SC decision on the National Eligibility cum
Entrance Examination, reformation of the BCCI, filling up of judicial posts in the recent past
have been criticized by the Government.47 It is interesting to note that the need to moderate
Judicial Activism and maintain separation of powers have been recognized by the judiciary
itself. In a 2008 decision of Aravali Golf Course v. Chander Haas48 for instance, the SC
emphasised the need to maintain judicial propriety and respect for the autonomy of each organ
of government in their domains of authority. The decision explicitly stated that judges must not
behave like Emperors, and must show “humility” and “modesty” in their conduct. The decision

43
P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. TRANSNAT’L L. 561 (1985).
44
S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U.J. L. & POL’Y029 (2001).
45
P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. TRANSNAT’L L. 561 (1985).
46
Id.
47
Dr. Nishitha Jaswal, Dr. Lakshminder Singh, Judicial activism in India, BHARATI L. REV. (2017).
48
Aravali Golf Course v. Chander Haas, (2008) 1 S.C..C 683 (India).

12
has boldly underlined the need to moderate judicial response by recognizing the role of other
organs of the State.

Thus, though judicial activism serves a crucial social purpose, there is an overarching to need
to ensure that judicial responses are tolerant. Judges must desist from utilising judicial activism
as a tool to demand subservience from other organs of the state. Utilising the power of judicial
review in its right spirit is essential to maintain the true character of our democracy as envisaged
by our Constitution makers.

CONCLUSION

The judge has a crucial role to play in the adjudication of PILs as in most cases brought before
it through letters, information may be scarce and inconclusive. It may necessitate active effort
from the court to investigate and decipher the details regarding the case.49 Thus, adjudication
of PIL requires a transition from the conventional adversarial role of judiciary to that of an
inquisitorial and dynamic judiciary.50 This radical transformation in PIL cases has been
achieved through the appointment of inquiry commissions comprising socio-legal enthusiasts
from all walks of life to assist the judiciary in the fair adjudication of the matter. Through the
appointment of commissions to investigate a matter and suggest remedial measures, the
judiciary deviates from its conventional approach of deciding a case on preponderance of
possibilities to a novel method of judicial decision-making, often referred to as “investigative
litigation”.51 In fact, the Anil Yadav case was the foundational decision, which initiated the
judicial transition into “investigative litigation” in PILs.52 In the case, the Registrar of the
Supreme Court acted as the investigating agent of the court.

While deciding PIL cases, the judge has to maintain meticulousness in approach and desist
from being driven by prejudiced notions on the interest of the parties. In particular, in cases
having wide socio-political implications, the judges must be extremely cautious in their
approach and be mindful of the long- term impacts its decision may entail.53 Further, the
feasibility of the measures must be duly considered before imposing them in a given case.54
The Indian system of PIL stands out from its corresponding system in other jurisdictions, for

49
J. A.M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, (1996) 4 SCC (Jour) 1.
50
S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U.J. L. & POL’Y029 (2001).
51
Clark D.Cunnigham, Public Interest Litigation in the Indian Supreme Court: A study in the light of American
Experience, 29 JILI, 505, 505-508 (1987).
52
Aman Hingorani, Indian Public Interest Litigation Locating Justice in State Law 166, DELHI LAW REV. XVII
(1995).
53
J. A.M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, 4 SCC JOUR. 1, (1996).
54
Id.

13
the Indian system even provides for the appointment of commissions to monitor the progress
of implementation of the court imposed measures.55 These commissions most often comprise
of social activists or judicial officers. Thus, in its entirety, the PIL system in India is a
comprehensive institution, which is both participatory and defensive.

The Indian system of PIL is unique in several ways and has caused wide ranging socio-political
transformations in the nation. Being completely judge invented and judge-driven, it goes
without saying that the success of PIL mechanism depends on the enthusiasm and prudence of
the judiciary.56 Besides this, active participation from civic groups and media is crucial to
sustain the momentum for PIL driven socio-political changes. To retain public faith and
maintain institutional integrity, the judiciary must also strive to ensure balance of power among
the organs of the state. The standard of balance of power so required is that which is envisaged
in the Constitution, which believes in an equitable distribution of powers among the three
organs of the State.

55
Carl Baar, Social Action Litigation in India: The Operation and Limits of the World’s most active judiciary,
19 Policy Studies J., 140-150.
56
Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the impossible? 37 THE
AMERICAN J. COMPARITIVE L. 518-519 (1989).

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