Saksham Gaikwad

Semester II

Roll Number – 2056

Constitutional Governance II

(Answer 1)

The Indian Constitution assigns judicial responsibility for upholding and enforcing people's
basic rights. However, during the current emergency and the rampant violations of fundamental
rights, the court has pulled its shocks and taken note of the spirit of Article 32, where there is
a constitutional obligation on this Court to protect fundamental rights. The court has previously
failed in performing its responsibility because it relied solely on a literal approach to
interpreting the written substance and became mired in intricacies of the same.

One such approach to deal with this is Public Interest Litigation [“PIL”]. PILs are designed to
help the poorest members of society. In the famous Hussainara Khatoon Case, they were
created to liberate under-trial inmates who had already completed their sentences if convicted.
After failing to safeguard the public during the Emergency, they were a symbol of the
Judiciary's determination to do so again. PIL jurisprudence in India has developed a variety of
unique strategies to protect the fundamental rights of all citizens, particularly those who are
disadvantaged.

Therefore, through the course of time, Indian Courts developed various novel ways to secure
the enforcement of Fundamental Rights, these were:

• "Continuing Mandamus" is a remedy that was adapted from South African

jurisprudence to the writ of Mandamus. This is a one-of-a-kind remedy that consists of
continuing the litigation while issuing instructions and orders on a regular basis to keep
individuals accused of violating fundamental rights, or those who allow such violations,
under check. Using this remedy in Vineet Narain v Union of India, or the Jain Hawala
Case, allowed the CBI to take a much more careful and long-term approach to the
investigation.

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 - As promising as this cure is, it raises questions about the long-term viability of cases
that work this way. This remedy may not be wise to utilise if the Supreme Court's
docket is already so busy that important constitutional concerns are being concealed
from the public eye.

• Chief Justice Bhagwati was the first to propose the concept of Epistolary Jurisdiction.
To find examples when citizens' fundamental rights were being abused, he used letters
and newspaper clippings provided to him. Writ petitions were then filed with the
Supreme Court on the basis of these letters. In the High Court Judge's Case, he finally
found a way to give this approach constitutional legitimacy by extending the doctrine
of locus standi to constitutional litigation.
• Transformation of adversarial litigation into affirmative inquisitorial adjudication: In
the classical image of the judiciary, it is merely a passive observer, content to make
judgments based on what is stated in court and to play no role in gathering evidence.
The Supreme Court, on the other hand, is currently challenging this position in favour
of judicial processes that result in a resolution. In Azad Rickshaw Pullers Union v State
of Punjab, the Supreme Court was asked to investigate particular legislation relating to
rickshaw owners and pullers' licensing. An alternate remedy was not offered by law;
thus the organization left the role of a passive observer. This was a departure from the
norm. Once it had done this, the policy had been changed to one that genuinely helped
individuals it was intended to aid.
• Locus Standi - easing The citizens who have their rights violated by the state are often
unable to take their case to the courts. Consequently, the judiciary has loosened the idea
of locus standi so that anyone who feels strongly about a cause can bring it to their
attention. It is worth noting that the petitioner in Hussainara Khatoon's case was not one
of the under-trials, but rather a lawyer who observed the injustice of our prison system,
which punishes those charged for legal delays.

Even while the Supreme Court has invented a slew of new means to enforce fundamental rights
in unique ways, such as Environmental PILs, these methods raise the issue of judicial
overreach. There's no doubt that it's worked well for example in Vishaka v State of Rajasthan
where the Supreme Court recommended the establishment of sexual harassment guidelines
while not enacting these guidelines themselves. However, a line must be drawn in the sand if

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the separation of powers prescribed by the Constitution is to be maintained. It doesn't matter,
because the judiciary has used most of these ways to improve society as a whole. As a result,
PILs and the remedies they result in are a huge success for the Indian judiciary.

(Answer 3)

Article 136 of the Indian Constitution deals with Special Leave Petitions [“SLPs”] in the Indian
Judicial system. It states that the Supreme Court has a special power through the provisions of
Article 136 to grant special leave to appeals against any judgment/order passed by any
court/tribunal in the Indian territory if there has been a gross miscarriage of justice or if any
substantial question concerning the law is concerned. SLPs provide a mechanism for helping
aggrieved parties with special permission to be heard in the Supreme Court in an appeal against
any judgment/order of the Courts of India.

However, it is completely up to the discretion of the Supreme Court whether it entertains the
petition or not.

There are two conditions required for when an SLP can be filed:

a) The judgment/order/decree has been announced by the Court/Tribunal in the territory

of India and only within 90 days of the same.
b) And in case the High Court denies the grant of the ‘certificate of fitness’ for an appeal
to the Supreme Court and only within 60 days of the same.

The most contrasting differences between an SLP and an ordinary appeal are as follows:

- SLPs can only be filed in exceptional and extraordinary situations, as mentioned above,
wherein, a gross miscarriage of justice or question of law concerning the general public
is in the picture, however, ordinary appeals don’t have such requirements.
- Another significant difference is the provision that SLPs can be filed not only against
final orders but against interlocutory orders as well, which isn’t possible in the case of
an ordinary appeal.
- SLPs can only be filed after an ordinary appeal has been rejected by the Court.
Exhaustion of all other remedies is crucial for filing an SLP.

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 - SLPs are special rights conferred by Article 136 of the Constitution, whereas, ordinary
appeals are part of the statutory rights of the citizens of India.

Conclusion

We come to understand that SLPs differ from ordinary appeals owing to the special
circumstances in which they can be filed and how the Supreme Court exercises complete
discretion whether it wishes to entertain the plea or not, along with the fact that no explanations
need to be provided for the denial of the SLP by the Supreme Court.

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