In light of the PIL jurisprudence in India, examine how the Supreme Court of India

designed novel ways to secure enforcement of Fundamental rights of the

disadvantaged.

The Supreme Court of India is perhaps the only institution which can be entrusted with the essential
social responsibility of guiding and giving meaning to public reform and be anticipated to succeed in its
endeavour at doing so. The PIL jurisprudence in India evolved post-emergency, changing notions of the
passive roles of the court, the coming-of-age of the idea of judicial populism and the judge-led and
judge-induced petitions in their stride, necessitated an entire revolution of the traditional paradigm of
legal strategy and decision-making. This gave birth to the position of the Supreme Court as the “people’s
court” and for the judges to be seen as messiahs and revolutionaries. During the period of the growth of
“social action litigation” (a term very aptly provided by Prof. Upendra Baxi), the supreme court took up
numerous cases and devised various novel methods and ways to deliver justice-

1. The beginning of Epistolary jurisdiction- When Ms. Kapila Hingorani, also known as the “Mother of
Public Interest Litigation”, started a series of writ petitions, multitudinous people from all fields of
professions, came up to expose the lawlessness in everyday governance and the terrible ignorance of
basic human rights. It would’ve acted as an obstruction for the spirit of justice to expect these common
men and women to have the legal understanding or be able to afford the legal backing to present their
cases in the traditional manner and so, a new method was devised. People were asked to write letters to
judges, for instance, Justice P N Bhagwati, entertained scores of letters and then subsequent conversion
of those in a form acceptable in typical court proceedings. This marked the beginning of the concept of
epistolary jurisdiction, which not only gave

everyone a chance to be heard but also opened the courts to the common man and moreover,
deprofessionalized the judicial system.

2. The emergence of “creeping jurisdiction”- Subsequent to the arrival of the system of epistolary
jurisdiction, another need was realized for the Social Action litigation to progress further in the legal
framework. Ensuring that appropriate remedies were given and lawful methods were followed by the
government administrations would have proved to be a herculean task for the courts and so the court
began ordering these very institutions to follow instructions provided by the courts. Even this had its
own problems, the institutions would more often than not ignore these particular orders and so there
was reiteration required. In addition to this, the court used these reiterative orders to issue a veiled
threat to employ contempt jurisdiction in lieu of further lack of adherence

3. Devising newer methods of fact finding- The problems of providing proof arose with the counsel
appearing for the state using the same or similar argumentation considering that all the PILs were filed
on the basis of investigative journalism and media reportage, note considered suitable evidence under
the Indian Evidence act, 1872. For this, the court began looking into the evidence further, by appointing
separate commissions for the same purpose. To begin with, Justice Bhagwati proposed the concept of
sociolegal commissions of enquiry. The Court requests that social activists, instructors, and researchers
visit certain regions to gather information and produce a brief but comprehensive report, which may
include comments and proposals. Furthermore, the court appointed medical examiners and sometimes
its own officers to look into and validate the evidence thereby, ensuring that nothing could get in the
way of delivering justice to the people.

4. Changing definition of locus standi- A liberal view of locus standi was taken. Any public-spirited person
with a reasonable argument could initiate the process of registering a PIL without having any individual
interest in the matter. This could be done by writing a letter

5. Inquisitorial investigations- The courts had traditionally maintained a passive role in both private as
well as public law proceeding, with the coming of social action litigation, the courts took on an
inquisitorial role and delved deeper into the aspects of each case.

The courts began to take a proactive role and became increasingly participative in the discussions and
fact-finding.

6. Additionally, the scope of mandamus and the concept of “continuing mandamus”- The scope of
mandamus was increased, prior to this, the court could only ask a governmental institution or
established to do something it was supposed to do or refrain from doing something that was unlawful,
however under the increased scope for mandamus, the court could now mandate institutions for acts of
omission or commission even when they had been provided with a discretionary power to do so. This
increased the control the court had on the government thereby, increasing the control people enjoyed
over the government. The concept of continuing mandamus was developed to establish further control
over how the governmental institutions acted and reacted to the instructions given by the court.