Law · Public Policy · Society

Of PILs and Activism

“Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and creative approach. The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal oriented approach. . . .”

The above was observed by the Supreme Court in the S.P Gupta versus Union of India case (also referred to as the Judges Transfer Case) when dealing with the question of locus standi of the petitioners. Although the notion of judicial activism remains contentious, not in the least due to its somewhat arbitrary nature, its fundamental premise of giving a voice to the voiceless has proven successful over the years. However, some legal scholars believe the ideals that judicial activism stand for are eroding with the discretionary nature of locus standi.

Judicial activism, as an idea has been present longer than the term. During the nineteenth century, a strong criticism of constitutional judicial legislation started to arise after the Court’s preference of business interests over social legislation was observed. The Lochner era (which began after the Lochner v New York case) is representative of striking down laws that infringed on economic liberty, widely described as a “judicially activist yet politically conservative role”. The term however, was coined in 1947 in an article in Fortune Magazine. Over the years, due to its largely arbitrary nature, judicial activism has been prevalent in some democratic setups (such as India) while some nations have been slow in adopting it.

In India, the basis of judicial activism in the Constitution of India is provided under Article 31 which gives the right to every citizen to move judicial courts in the event that any of their fundamental rights are violated.  An initially contested legal phenomenon formed the base for practices of judicial activism, i.e. the principle of locus standi. A Latin phrase meaning “place to stand”, locus standi refers to whether or not someone has the right to be heard in court. Technically, a person has locus standi in a given situation if it is possible to demonstrate that the issue at hand is causing harm and that an action undertaken by the court could redress that harm. If these conditions cannot be satisfied, the court may determine that an issue has no locus standi, and it will not review it.

In India however, the notion of locus standi has been broadened to make the principle of ‘who has the legal standing’ more inclusive.  Through the use of Public Interest Litigations (PILs), judicial activism has come to represent a panacea for those who require judicial redresssal but neither have the knowledge nor the means to approach for the same.  In 1982, the Supreme Court conceded that unusual measures were required to enable people the full realization of not just their civil and political rights, but the enjoyment of economic, social, and cultural rights. In its decision in the PUDR (People’s Union for Democratic Rights) vs. Union of India case, the Supreme Court recognized the notion that a third party could directly petition the Court, through either a letter or other means, and seek redressal or the court’s internvention in a manner where another party’s fundamental rights are being violated.

In the 1981 S.P. Gupta v. Union of India case, Justice P.N Bhagwati stated the following, articulating a PIL “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”

The rule of locus standi has therefore been greatly relaxed to make the judicial system much more inclusive. The courts, on several occasions, have also decided to take a case suo motu on the basis of news reports, personal letters etc.

However, over the past decade, the aspect of redressal for social action and maintaining civil and political rights has eroded. The conditions and parameters of PIL need to be strictly formulated by the Supreme Court as it may be rendered ineffective by arbitrary and indiscriminate use.

About the Author

ED3Anushka Kaushik is currently pursuing Journalism from Lady Shri Ram College for Women, Delhi University and strongly believes in the power of the media to influence change in matter of public policy. She is of the opinion however that consuming media content is as important as having media awareness. Her interest and professional goal lies in the study of international relations and eventually reporting in such matters for print media.  She is currently pursuing her internship with Alexis Centre for Public Policy and International Relations.

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