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 Address

Judicial Activism and Public Interest

Litigation*
P.N. BHAGWATI**

The subject I have chosen for my lecture today is "Judicial Ac-

tivism and Public Interest Litigation." When I was first asked what
subject I would be speaking on, I suggested that it be "Public Interest
Litigation: The Indian Experience." In fact, this topic was suggested
to me by my friend Jack Greenberg.*** I thought, however, that no
discussion of public interest litigation in India could be complete
without some reflection on the nature of judicial activism because, as I
shall presently argue, public interest litigation in India is primarily
judge-led and even to some extent judge-induced; the product of juris-
tic and judicial activism on our Supreme Court.
I will therefore begin by examining the nature of judicial activ-
ism. It can hardly be disputed that judicial activism is now a central
feature of every political system that vests adjudicatory power in a
free and independent judiciary. The scope of judicial activism varies
with the width of the power conferred on the courts. Where the
courts have the power of judicial review, there is greater scope for
judicial activism, and this scope increases considerably where the
power of judicial review extends not only over executive action, as in
* This address was delivered on Oct. 3, 1984 at the Columbia University School of Law
as part of the Samuel Rubin Program for the Advancement of Liberty and Equality through
Law. The program was established by a gift of the Samuel Rubin Foundation to promote
concern for universal human rights and the peaceful resolution of economic and social conflict
through free expression and the right to dissent.
** Justice of the Supreme Court of India and Chairman of the Indian National Commit-
tee of the Implementation of the Legal Aid Schemes. Justice Bhagwati will become Chief Jus-
tice of the Supreme Court of India in July of 1985.
*** Jack Greenberg is a Professor of Law at Columbia University and former Director
of the National Association for the Advancement of Colored People (NAACP) Legal Defense
Fund -- ed.
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

the United Kingdom, but also over legislative action, as in the United
States, and even over constitutional amendments, as in India.
The extension of the power of judicial review over constitutional
amendments was itself an exercise in judicial activism on the part of
the Supreme Court of India. The Supreme Court, sitting en banc in
the leading case of Kesavanandadecided in 1973,1 held by a process of
judicial interpretation that though there are no express words in Arti-
cle 368 of the Indian Constitution 2 limiting the power conferred by
that Article on Parliament to amend the Constitution, that power is
not an unlimited or unrestricted power and it does not entitle Parlia-
ment to amend the Constitution in such a way as to alter or affect the
basic structure of the Constitution. This decision of the Supreme
Court has evoked considerable criticism, and there are quite a few
critics who regard it is an unwarranted encroachment on the power of
Parliament. The criticism may or may not be justified, but the fact
remains that a limitation has been put by the Supreme Court on the
power of Parliament to amend the Constitution. This is undoubtedly
a most remarkable instance of judicial activism, for it has gone to the
farthest extent in limiting the constituent power of Parliament. I have
referred to this instance only by way of an extreme illustration, and I
should not be regarded as indicating approval for it. The point which
I wish to emphasize is that judicial activism is an undeniable feature
of the judicial process in a democracy and the only relevant question
is what should be the degree and extent of judicial activism permissi-
ble to a judge.
If we analyze the true nature of the judicial function, it will im-
mediately become apparent that judicial activism, whatever its degree
or extent, is an essential part of the judicial process. There is a myth
strongly nurtured by the Anglo-Saxon tradition and propagated by
many jurists that judges do not make law, that they merely interpret
law. Law is there, existing and immanent, and judges merely find it.
The lawmaking function does not belong to them-it belongs to the
legislature-and judges merely reflect what the legislature has said.
This is the proclaimed theory of the judicial function, but I am afraid
it hides the real nature of the judicial process. It has been deliberately
constructed in order to insulate judges against vulnerability to public
criticism, and to preserve their image of neutrality, which is regarded
as necessary for enhancing their credibility. It also helps judges to
escape accountability for what they decide, because they can always
plead helplessness (even if the law they declare is unjust) by saying

1. Keshavananda Bharati v. State of Kerala, 1973 A.I.R. 1461 (S.C.).

2. INDIA CONST. art. 368.
19851 ADDRESS

that it is the law made by the legislature and that they have no choice
but to give effect to it. It is only natural that judges should wish to
exercise power but not be accountable to anyone for such exercise. It
too is natural for them to indulge in the fiction that they are merely
carrying out the intention of the legislature or discovering the imma-
nent something called the law.
Thus, the tradition of the law and the craft of jurisprudence offer
such judges plenty of dignified exits from the agony of a self-conscious
wielding of power. This stance suits equally the lawyers and the
scholars who find it more convenient to deal with immediate issues of
technique and substance rather than look back to more fundamental
questions of the role of the judge in a traumatically changing society.
This explains the persistent attempt on the part of some lawyers and
judges to convince the people about the truth of the fallacy that judges
do not make law. Yet, there can be no doubt that judges do take part
in the lawmaking process. Lord Reid, one of the greatest English
judges, had no illusions about the potential for creativity in the judi-
cial role. He once declared:
There was a time when it was thought almost indecent to
suggest that Judges make law-they only declare it. Those
with a taste for fairy tales deem to have thought that in
some Aladdin's cave there is hidden the Common Law in all
its splendour and that on a judge's appointment there de-
scends on him knowledge of the magic words Open Sesame.
Bad decisions are given when the judge has muddled the
password and the wrong door opens. But we do not believe
in fairy tales any more.
If we accept the thesis that judges do make law, whether intersti-
tiously, as Justice Holmes would have it, or otherwise, it must follow
as a necessary corollary that judicial activism is a necessary and inevi-
table part of the judicial process. The question only is what kind of
judicial activism, how much of it, in what manner, within which self-
imposed limits, to what willed results, and with what tolerable ac-
cumulation of unintended results, should the judges adopt a pro-ac-
tive approach.
Judicial activism can take many forms. At one level, it may take
the form of simply ensuring that judges have the necessary freedom of
action-freedom to choose alternative courses of action. Let me take
an example. In 1966, the House of Lords delivered a Practice State-
ment that they were not bound by their previous decisions and that

3. Reid, The Judge as Lawmaker, 12 J.S.P.T.L. 22 (1972).

 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

they could deviate from the same.4 This was in one sense a declara-
tion of freedom from certain constraints that the House of Lords had
imposed upon itself in 1897.5 Perhaps in 1897 it would have been im-
politic for the judges to declare for themselves the power to reverse
their decisions whenever they wanted. On the other hand, in 1966 it
would have been equally impolitic for a post-war judiciary to declare
that it was inextricably bound to its previous decisions. The judges of
1966 could be regarded as activists, though they were simply reassess-
ing their political situation and the form in which they would treat
their earlier doctrines. The Practice Statement did no more than
merely declare a freedom. Subsequent decisions of the House of
Lords show that the basic conservatism of that august body was not
altered by this newly declared freedom. It reversed its earlier deci-
sions only in very few cases. I will call this kind of judicial activism
"technical activism." It consists of a declaration of freedom to have
recourse to a wide range of techniques and choices. Such an activism
is "technical" because it is concerned merely with keeping juristic
techniques open ended.
In this day and age, most judges would confess to technical activ-
ism. Indeed, they would be embarrassed to admit to not being activist
in this sense. Thus, most judges of the Supreme Court of India have
been anxious to declare the breadth of their power. They have de-
clared that they are free to depart from their previous decisions. They
have refused to put constraints on the jurisdiction of the Supreme
Court to hear appeals from any court tribunal in the country. They
have assumed the power to tear the veil of official secrecy. In a recent
case, the Supreme Court ordered disclosure of correspondence be-
tween the Chief Justice of India and the President in respect of judi-
cial appointments to the High Court Bench.6 They are clearly

4. 276 PARL. DEB. H.L. (5th ser.) 677 (1966) (Practice Statement of 1966 read by Lord
Gardener. on behalf of himself and the Lords of Appeal in Ordinary before judgments were
rendered on July 26, 1966).
5. London St. Tramways Co. v. London County Council, 1894 A.C. 489.
6. Judges Appointment and Transfer Case, 1982 A.I.R. 149 (S.C.). India is a union of 22
states. Each state has its own High Court, except the States of Punjab and Haryana which
have a common High Court and the States of Assam, Meghalaya, Mizoram, Nagaland and
Arunachal Pradesh which also have a common High Court. The High Court is the highest
court in the state. Unlike the state courts in the United States, every High Court has jurisdic-
tion to deal with issues arising out of central legislation as well as state legislation and between
the citizen on the one hand and the Union of India on the other. The Supreme Court is the
highest court in the country and has original jurisdiction in case of violations of fundamental
rights of any individual or corporation and appellate jurisdiction over the judgment or order of
any court or tribunal in the country. This appellate jurisdiction is exercised by the Supreme
Court only in appropriate cases by granting special leave to appeal. The High Court in each
state has the power of judicial review over executive action of the central government and the
state government as well as over central and state legislation. If the executive action is outside
19851 ADDRESS

activists in the technical sense, though they use their declared powers
to substantive effect only in rare cases.
Technical activism may be contrasted with what I would like to
call "juristic activism." Juristic activism is not concerned merely with
the appropriation of increased power, but is concerned as well with
the creation of new concepts, irrespective of the purposes which they
serve. The common law is itself an example of the development of
juristic activism. Over the centuries it has been fashioned and refash-
ioned to deal with new claims and demands; it has developed new
concepts and invented new principles. Many of these were created to
serve the existing status quo rather than to change it. The doctrine of
common employment enunciated in Priestley v. Fowler7 is as much an
example of juristic activism as the concept of negligence created in
Donoghue v. Stephenson.8 In this kind of juristic activism, the judge is
not concerned with the social consequences generated by the creation
of new concepts or principles, or with the question as to whom these
new concepts and principles will serve.
These new concepts and principles may help to preserve the sta-
tus quo. They may impede equitable distribution of the social or mate-
rial resources of the community or even, as a consequence, tend to
defeat realization of the community or realization of constitutional
objectives. Even so, there is no reason to deny the title of activism to
this kind of creative juristic activity. Indeed, no legal system which
denies to itself some scope for this kind of judicial activism can
survive.
The Supreme Court of India also has been quite creative in this
sense. It has invented an impressive range of concepts in both public
and private law. For example, the Supreme Court has used the doc-
trine of statutory interpretation imaginatively and, in the area of pub-
lic law, English administrative law techniques inherited from the
British have been creatively refashioned by the Supreme Court to
form the basis of judicial review. It is, however, necessary to go be-
yond technical and juristic activism to inquire about the purpose for
which such activism is practiced.

the authority conferred by law or the legislation is beyond the competence of the appropriate
legislature, or if the executive action or legislation is violative of any fundamental rights, any
person aggrieved can approach the High Court for relief under article 226 of the Constitution.
The Supreme Court also has extensive power of judicial review under article 32 of the Consti-
tution over executive and legislative action of the central as well as the state governments, but
this original jurisdiction is confined only to cases of violations of fundamental rights. The
fundamental rights are set out in Part III of the Constitution and they are similar to the Bill of
Rights of the U.S. Constitution.
7. Priestly v. Fowler, Exchequer of Pleas, 150 Eng. Rep. 1030 (1837).
8. Donoghue v. Stevenson, 1932 A.C. 562.
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

Technical and juristic activism considered in isolation obscures

our understanding of the purpose behind such activism. It is impor-
tant to try to discover why a particular kind of judicial creativity has
been adopted and to inquire into the purpose which it seeks to serve.
It is the instrumental use of judicial activism that needs to be consid-
ered, for judicial activism cannot be divorced from the purpose it
serves. It cannot be judged in the abstract: it can be evaluated only in
terms of its social objective. Even where the judge adheres to formal
notions of justice and claims not to be concerned with the social con-
sequences of what he decides, it is often a thin disguise, for in many
such cases his instrumental objective is to preserve the status quo.
We in India are trying to move away from formalism and to use
juristic activism for achieving distributive justice or, as we in India are
accustomed to labeling it, "social justice." Let me make clear that the
objective for which we are trying to use juristic activism is realization
of social justice. Judges in India are not in an uncharted sea in the
decision-making process. They have to justify their decision-making
within the framework of constitutional values. This is nothing but an-
other form of constitutionalism which is concerned with substan-
tivization of social justice. I would call this appropriately "social
activism"-activism which is directed towards achievement of social
justice. Unfortunately, this form of social activism has not been ade-
quately analyzed and evaluated.
To my mind, social activism is a most complex and challenging
task facing the modern judiciary today, particularly in the developing
countries such as India. The modern judiciary cannot afford to hide
behind notions of legal justice and plead incapacity when social justice
issues are addressed to it. This challenge is an important one, not just
because judges owe a duty to do justice with a view to creating and
molding a just society, but because a modern judiciary can no longer
obtain social and political legitimacy without making a substantial
contribution to issues of social justice.
This is precisely what happened in the United States when the
Supreme Court was striking down social legislation pertaining to the
working hours of men, women and children. Interestingly, those who
were supporting such social legislation intended to bring about social
justice, and criticized the justices who nullified such liberal legislation
for their judicial activism, pleading for judicial restraint. In the course
of time, however, it became impossible for the Supreme Court to
maintain that it provided justice to the large bulk of the U.S. popula-
tion if it could not sustain the validity of such liberal legislation. Simi-
1985] ADDRESS

larly, in Brown v. Board of Education,9 the Supreme Court of the

United States had to switch from its earlier decisions, because in the
changed circumstances it would have been impossible for the Supreme
Court to maintain its credibility with the people if it adhered to the
doctrine enunciated in its earlier decisions. The Supreme Court had to
legitimate its rhetoric that it provided equal justice to all citizens, in-
cluding blacks.
The Supreme Court of India is also faced with a similar legitima-
tion crisis. In a country which has vast differentials, it cannot turn
away from the claims and demands of social justice and still honor its
claim to be a Court for all the citizens of India. The Supreme Court of
India has in the past few years tried to grapple with this problem. It
has started wielding judicial power in a manner unprecedented in its
history of more than thirty years, and through a variety of techniques
of jurisitic activism it has begun converting much of constitutional
litigation into public interest litigation, calculated to bring social jus-
tice within the reach of the common man.
The Court has expanded the frontiers of fundamental rights and
of natural justice, and in the process has rewritten some parts of the
Constitution. The right to life and personal liberty under procedure
established by law in Article 21 of the Indian Constitution has been
converted de facto and de jure into a procedural due process clause,
contrary to the intention of the makers of the Constitution.10 This
expanding right has encompassed, through a process of judicial inter-
pretation, the right to bail, the right to speedy trial, the right to digni-
fied treatment in custodial institutions, the right to legal aid in
criminal proceedings and, above all, the right to live with basic
human dignity. The Supreme Court has developed a new normative
regime of rights, insisting that the State cannot act arbitrarily but in-
stead must act reasonably and in the public interest, on pain of its
action being invalidated by judicial intervention. The Supreme Court
has also developed the innovative strategy of public interest litigation
for the purpose of making basic human rights meaningful for the large
masses of people in the country and making it possible for them to
realize their social and economic entitlements.
The Supreme Court of India for too long had remained "an
arena of legal quibbling for men with long purses,"I but now increas-
ingly the Supreme Court is being identified by justices as well as by

9. Brown v. Board of Edue., 347 U.S. 483 (1954).

10. INDIA CONST. art. 21.
11. Keshavananda Bharati v. State of Kerala, 1973 A.I.R. 1461, 1485 (S.C.) (statement
by Dwivedi, J.).
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW[ [23:561

people as the "last resort for the oppressed and the bewildered." 12 The
transition from a traditional captive agency with a low social visibility
into a liberated agency with high socio-political feasibility is an inter-
esting development in the career of the Indian appellate judiciary. The
Supreme Court, through public interest litigation, has found a new
historical basis for the legitimation of judicial power and has acquired
new credibility with the people. This development has been the result
of intense social activism on the part of some of the justices of the
Supreme Court of India.
The history of public interest litigation in India is a history of the
last five or six years. It represents a sustained effort on the part of the
highest judiciary to provide access to justice for the deprived sections
of Indian humanity. With a legal architecture designed for a colonial
administration and a jurisprudence structured around a free-market
economy, the Indian judiciary could not accomplish much in fulfilling
the constitutional aspirations of the vast masses of underprivileged
people during the first three decades of freedom. During the last five
or six years, however, social activism has opened up a new dimension
of the judicial process, and this new dimension is a direct emanation
from the basic objectives and values underlying the Indian
Constitution.
The peculiarity of the Indian Constitution is that it contains a
chapter on fundamental rights which bears a fairly close resemblance
to the Bill of Rights in the U.S. Constitution, but in addition to the
chapter on Fundamental Rights, it also contains a chapter on Direc-
tive Principles of State Policy. 3 The Directive Principles set out the
socio-economic structure envisaged by the Indian Constitution and
they constitute the most important and creative part of the Constitu-
tion. They encapsulate the social and economic rights of the people
and hold out social justice as the central feature of the new constitu-
tional order. The Directive Principles are not enforceable in a court of
law, but they are declared by the Constitution to be fundamental in
the governance of the country, so that not only the legislature and the
executive but also the judiciary are bound to act in furtherance of
them discharging their functions. This basic mandate of the Constitu-
tion motivated and inspired some of the justices to become social ac-
tivists. They realized that in the early years of its existence the
instrumental use of formalist jurisprudence made by the Supreme
Court had benefitted only the advantaged classes and had given an

12. Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of
India, 29 INT'L COMMrI=EE JuISTS REV. 37 (1982).
13. INDIA CONST. part IV.
1985] ADDRESS

impression of the Supreme Court acting as a roadblock in the way of

progress. With this realization, these justices leapt into action,
presenting new ideas, opening new possibilities, and starting to assert
and to exercise, almost explosively, judicial power in aid of the disad-
vantaged. They broke rank from the old tradition and embarked upon
unorthodox and unconventional strategies for bringing justice to the
poor. In the process, they began directly to nurture a constituency
consisting of the large bulk of the have-nots. Thus came into being
public interest litigation with its characteristic social justice
dimension.
It is necessary at this stage to distinguish public interest litigation
in India from its counterpart in the United States. The model of pub-
lic interest litigation that has evolved in the United States has distinc-
tive characteristics peculiar to its social context and environment. It is
not a model that can be transplanted to developing countries like In-
dia. I am fully familiar with the U.S. model of public interest litiga-
tion, but I believe it requires substantial resource investment, and
despite the affluent society in the United States, it is unable to over-
come problems of resources, both in terms of manpower and finance.
The public interest litigation model in India cannot be based on the
U.S. model because of large-scale poverty and ignorance and the lack
of adequate resources.
Moreover, the issues taken up by public interest litigation in the
United States are very different from the issues espoused by public
interest litigation in India. The United States model is, I believe, con-
cerned more with civic participation in governmental decision-mak-
ing, and it seeks to represent "interests without groups," such as
consumerism or environmentalism. These, no doubt, form the issues
of public interest litigation in India also, but the primary focus is on
State repression, governmental lawlessness, administrative deviance,
and exploitation of disadvantaged groups and denial to them of their
rights and entitlements. The public interest litigation model which we
have evolved in India is directed towards "finding turn-around situa-
tions" in the political economy for the disadvantaged and other vul-
nerable groups. It is concerned with the immediate as well as long-
term resolution of problems of the disadvantaged. It also seeks to en-
sure that the activities of the State fulfill the obligations of the law
under which they exist and function. The substance of public interest
litigation in India is thus much wider than that of public interest liti-
gation in the United States.
Anglo-Saxon jurisprudence is not the easiest jurisprudence to
adopt in India, for this kind of public interest litigation seeks to com-
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

bat exploitation and repression and to enforce corrective social rights

for disadvantaged groups of people. Anglo-Saxon law is transactional,
highly individualistic, concerned with an atomistic justice incapable
of responding to the claims and demands of collectivity, and resistant
to change. Such law was developed and has evolved in an essentially
individualistic society to deal with situations involving the private
right/duty pattern. It cannot possibly meet the challenge raised by
these new concerns for the social rights and collective claims of the
underprivileged. What we therefore need to do is fashion new strate-
gies-in fact, evolve a new jurisprudence-and find a new policy of
collectivity as a backdrop to our efforts. We have to devise new proce-
dures which would make it easier for the disadvantaged to use the
legal process and evolve new, equitable principles oriented to distribu-
tive justice. This task is difficult and complex, but we in India have
attempted it by adopting various initiatives in promoting and develop-
ing public interest litigation of the kind I have just described.
We found that one of the main problems which impeded the de-
velopment of effective use of the law and the judicial system by the
disadvantaged was the problem of accessibility to justice. Article 32,
which is found in the Chapter on Fundamental Rights in the Indian
Constitution, confers upon the Supreme Court the right to pass mo-
tions by appropriate. proceedings for the enforcement of fundamental
rights, and empowers the Supreme Court to issue any directives, or-
ders or writs for the enforcement of such fundamental rights. 4
Though this Article of the Constitution is couched in the widest terms
and under it anyone can approach the Supreme Court for enforce-
ment of fundamental rights, the position which existed during the first
three decades of the existence of the Supreme Court was that this
provision meant nothing to the large bulk of the population of India,
who knew only the majesty of the Court without having felt its jus-
tice. The Court for a long time was used only by those who were
wealthy and affluent and who, to borrow Marc Galanter's phrase,
were "repeat players" of the litigation game. The poor were priced
out of the judicial system, for they were unable to approach the courts
for justice.
The Supreme Court of India found that the main obstacle which
deprived the poor and the disadvantaged of effective access to justice
was the traditional rule of standing, which insists that only a person
who has suffered a specific legal injury by reason of actual or
threatened violation of his legal rights or legally protected interests
can bring an action for judicial redress. It is only the holder of the

14. INDIA CONST. art. 32.

1985] ADDRESS

right who can sue for actual or threatened violation of the right, and
no other person can file an action to vindicate such a right. This rule
of standing obviously evolved to deal with a right-duty pattern which
is only to be found in private law litigation. It effectively barred the
doors of the Court, however, to large masses of people who, on ac-
count of poverty and ignorance, could not utilize the judicial process.
It was felt that even if legal aid offices were established for them, it
would be impossible for them to take advantage of the legal aid pro-
gram because most of them lack awareness of their constitutional and
legal rights; and even if they were made aware of their rights, many of
them would lack the capacity to assert them.
The Supreme Court of India therefore decided to depart from the
traditional rule of standing and to broaden access to justice. 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 their constitutional or legal
rights, and such person or determinate class of persons is by reason of
poverty or disability in a socially or economically disadvantaged posi-
tion and unable to approach the Court for relief, any member of the
public or a social action group acting bona fide can maintain an appli-
cation in a High Court or the Supreme Court seeking judicial redress
for the legal wrong or injury caused to such person or determinate
class of persons. This is no more than a radical generalization or ex-
tension of the technique followed in most countries in habeas corpus
cases where the Court usually acts on letters written by or on behalf
of such a person or determinate class of persons.
The Supreme Court of India also felt that when any member of a
public or social organization espouses the cause of the poor, he should
be able to move the Court by just writing a letter, because it would
not be right or fair to expect a person acting pro bonopublico to incur
expenses from his own pocket in order to go to a lawyer and prepare a
regular petition to be filed in Court for endorsement of the fundamen-
tal rights of the poor. In such a case, a letter addressed by him to the
Court can legitimately be regarded as an appropriate proceeding
within the meaning of Article 32 of the Constitution. The Supreme
Court thus evolved what has come to be known as "epistolary juris-
diction," where the Court can be moved by just addressing a letter on
behalf of the disadvantaged class of persons.
Epistolary jurisdiction was a major breakthrough achieved by the
Supreme Court in bringing justice closer to the large masses of people.
The Court for a long time had remained the preserve of the rich and
the well-to-do, and had been used only for the purpose of protecting
the rights of the privileged classes. As a result of this innovative use of
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

judicial power, however, the portals of the Court are thrown open to
the poor, the ignorant and the illiterate, and their cases have started
coming before the Court through public interest litigation. People
now know that the Court has the constitutional power of intervention
which can be invoked to combat repression and exploitation and en-
sure realization of constitutional and legal rights for persons under
trial, convicted prisoners, women in protective custody, children in
jail, bonded and migrant laborers, unorganized workers, scheduled
castes and tribes, landless agricultural farmers who fall prey to faulty
mechanization, women who are victims of flesh trade or dowry, slum
and pavement dwellers, and the kin of victims of extrajudicial execu-
tion. These and many other disadvantaged groups now have their
problems brought before the courts through public interest litigation.
These are unusual problems which call for extraordinary remedies,
and they need a new kind of lawyering skill and a novel kind of
judging.
I may point out that this innovative use of judicial power began
in a rather informal way. One or two justices of the Supreme Court
started entertaining letters written by or on behalf of disadvantaged
people. A few of these letters were treated as petitions and, on the
basis of such letters, relief was granted to large numbers of persons
belonging to the exploited sectors of the economy. One such letter was
addressed by two professors of law on behalf of the inmates of a pro-
tective home run by the State of Uttar Pradesh, which is one of the
States in India. 5 Another was a letter addressed by a journalist con-
cerned over the flesh trade going on in a certain part of the State of
Madhya Pradesh. 6 Then there was a letter written by a social science
researcher complaining of the detention of several prisoners in jails
awaiting trials in the State of Bihar, and particularly of four tribal
boys who had almost grown up in jail from the age of twelve to the 17
age of eighteen or nineteen without their trials having commenced.
There were quite a few other letters; all of them were treated as peti-
tions and ameliorative directions were given.
This practice of entertaining letters as petitions, which was initi-
ated and followed on an ad hoe basis by some of the justices, was
institutionalized by the Supreme Court in a judgment delivered in the
Judges Appointment & Transfer case in December 1981.18 Hence,
epistolary jurisdiction was legitimized and placed on a sound jurispru-

15. For a discussion of this case, see Baxi, supra note 12, at 47. The case is not officially
reported.
16. Id
17. Kadra Pahadiya v. State of Bihar, 1981 A.I.R 939 & 1167 (S.C.).
18. 1982 A.I.R. 149 (S.C.).
19851 ADDRESS

dential foundation. Here, however, a word of caution is necessary. It

is not every letter addressed to the Court or to an individual justice
which is treated and acted upon by the Court as a petition. Certain
parameters of epistolary jurisdiction are laid down by the Court. 19
The Court entertains a letter as a petition only where the letter is
addressed by or on behalf of a person in custody or for enforcement of
the constitutional or legal rights of a class or group of persons who
belong to a disadvantaged segment of society, or for putting an end to
the exploitation and injustice from which such persons are suffering.
If, on the other hand, the letter is on behalf of an individual who has
suffered merely a private wrong, we do not entertain it as a petition,
save in exceptional cases, and instead send it to the appropriate legal
aid and advice board.
It is an interesting feature of public interest litigation in India
that it has received considerable impetus from the press. The press
has tried consistently and fearlessly to expose governmental lawless-
ness, social tyranny and economic exploitation through investigative
journalism which, barring a few aberrations, has been of a fairly high
order. The expos6s and revelations of the press have provided the sub-
stance of public interest litigation. Social action groups have brought
diverse actions in the courts by way of public interest litigation on the
basis of information provided by the press through investigative jour-
nalism. This has also enabled activist groups to elevate what were re-
garded as petty instances of injustice and tyranny at the local level
into national issues, calling attention to the pathology of public and
dominant group power. Social action groups thus have found in the
press a new ally in their struggle for social development and change,
and the relationship between social action groups and the press has
provided a fertile ground for the growth of public interest litigation.
Right from the commencement of public interest litigation, one
difficulty became manifest: the total unsuitability of the adversarial
procedure to this kind of litigation. The adversarial procedure can
operate fairly and produce just results only if the two contesting par-
ties are evenly matched in strength and resources. Quite often, how-
ever, that is not the case. Where one of the parties to a litigation is
weak and helpless and does not possess adequate social and material
resources, he is bound to be at a disadvantage under the adversarial
system, not only because of the difficulty in getting competent legal
representation, but more than anything else because of the inability to
produce relevant evidence before the Court. The problem of proof
therefore presents obvious difficulties in public interest litigation

19. Bandhua Mukti Morcha v. Union of India, 1984 A.I.R. 802, 812-13 (S.C.).
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

brought to vindicate the rights of the poor. This problem becomes

acute in many cases because, often enough, the opposing respondents
deny on affidavit the allegations of exploitation, repression and denial
of rights made against them. Sometimes the respondents contest the
bona fides or the degree of the relevancy of the information on which
the litigation is based and sometimes they attribute wild ulterior mo-
tives to the social activists bringing the litigation.
How then is evidence going to be produced before the Court on
behalf of the poor? It is obvious that the poor cannot possibly produce
material before the Court in support of their case. It would be equally
difficult for social activists who have brought the litigation to gather
relevant material and to place it before the Court, on account of lack
of resources. These new socio-legal entrepreneurs who approach the
Court pro bono publico on their own without much support have their
social commitment as their only asset. What then is the judge to do in
such a case? Should a judge adopt a passive approach and refuse to
intervene because relevant material has not been produced before
him? Would such an attitude not defeat the constitutional and legal
rights of the poor and render them meaningless and futile?
The judge has three options available to him. First is the option
of ignorance: the judge can simply ignore the problem and find a con-
venient exit by pleading that his function is only to do legal justice
and that he is not concerned with social justice. If the petitioner can-
not produce material in support of the case, it is the misfortune of
those whose case he is pleading; the law cannot help. Second is the
option of a thoroughly researched, Justice Brandeis-type brief. That is
very expensive, however, and it is beyond the means of an ordinary
individual and even of a social action group. It also may be beyond
the skills of the lawyer who ordinarily espouses such causes. Third,
the judge can order his own investigation.
The Supreme Court of India has adopted the third alternative in
a number of cases. It has initiated the strategy of supporting socio-
legal commissions of inquiry. It has in various cases appointed social
activists, teachers, researchers, journalists, and government and judi-
cial officers as Court commissioners to visit particular locations for
fact-finding and to submit a quick but detailed report setting out their
findings as well as their suggestions and recommendations. Such in-
stances are frequent, but I will mention only a few to illustrate the
point I am making. In one of the early cases, the Supreme Court ap-
pointed a socio-legal commission consisting of a professor of law and
a journalist to investigate the plight of a community called
"chainers," who were traditionally engaged in the occupation of flay-
1985] ADDRESS

ing the skin of dead animals and who were to be thrown out of busi-
ness by a new system of auctioning of contracts."0 In the Agra
Protective Home case,"1 the Supreme Court appointed the District
Judge to visit the protective home and to report to the Court in regard
to the living conditions of the girls in the protective home. The
Supreme Court also directed medical examination of the inmates, for
they were alleged to be suffering from infectious diseases. The Court
also ordered that medical assistance be provided to the girls. In an
environmental case, the Supreme Court appointed a panel of geologi-
cal experts and a panel of environmental experts to report to the
Court for the purpose of enabling the Court to decide whether limes-
tone quarrying should be stopped or allowed in the Mussoorie hills.22
The practice of appointing socio-legal commissions of inquiry for
the purpose of gathering relevant material in public interest litigation
has now been institutionalized as a result of the judgment of the
Supreme Court in the Bandhua Mukti Morcha case. 3 The report of a
socio-legal investigation is regarded as prima facie evidence by the
Court, and when it is received by the Court, copies are supplied to the
parties so that either may dispute the facts or data stated in the report
by filing an affidavit. The Court then considers the report of the com-
missioner and the affidavits which may be filed, and proceeds to adju-
dicate the issues arising in the writ petition. This practice marks a
radical departure from the adversarial system of justice which we
have inherited from the British.
Even after all these innovations made by the Supreme Court,
however, the question remains as to what relief the Court can give to
the disadvantaged whose problems are brought before the Court
through public interest litigation. The Court had to evolve new reme-
dies for giving relief. The existing remedies which were intended to
deal with private rights situations were simply inadequate. The suffer-
ing of the disadvantaged could not be relieved by mere issuance of
prerogative writs of certiorari, prohibition or mandamus, or by mak-
ing orders granting damages or injunctive relief, where such suffering
was the result of continuous repression and denial of rights. The
Supreme Court, therefore, explored new remedies which would en-

20. Hiralal v. Zila Parishad, Kanpur, Writ No. 1869-70/81 (S.C. 1981), reportedin 1982
U.P.L.B.E.C.
21. For a discussion of this case, see Baxi supra note 12. The case is not officially
reported.
22. Rural Litigation & Entitlement Centre, Dehra Dun v. State of Uttar Pradesh, Writ
No. 8209 (S.C. 1983).
23. Bandhua Mutki Morcha v. Union of India, 1984 A.I.R. 802, 816-17, 845, 848-49
(S.C.).
 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [23:561

sure distributive justice to the deprived sections of the community.

These remedies were unorthodox and unconventional and were in-
tended to initiate affirmative action on the part of the State and its
authorities. One example of the utilization of these new remedies is a
case decided by the Supreme Court last year. In that case, the
Supreme Court made an order giving various directions for identify-
ing, releasing and rehabilitating laborers who were held in debt bond-
age, ensuring payment of minimum wage, observance of labor laws,
providing wholesome drinking water, promoting legal awareness, and
ensuring medical assistance and schooling facilities.2 4 In the Bihar
pre-trial detention cases, the Supreme Court directed that the State
government prepare an annual census of the prisoners on trial as of
October 31 of each year and submit it to the High Court. The High
Court should then direct early disposal of cases where these prisoners
were under detention for unreasonably long periods.2 The Supreme
Court directed in the Bihar Blinding cases that the prisoners under
trial who had been blinded should be given vocational training in an
institute for the blind and compensation should be paid to them for
life.26 In another case brought by a journalist, the Supreme Court di-
rected that there should be a separate lock-up for women in charge of
women police constables and, in addition, a notice should be put up in
each police lock-up informing the arrested person of his rights.27
There are numerous cases where remedy by way of affirmative action
has been directed by the Supreme Court.
Let me make it clear that when judges are granting relief they are
not acting as a parallel government. They are merely enforcing the
constitutional and legal rights of the underprivileged and obligating
the Government to carry out its obligations under the law. The poor
cannot be allowed to be cheated out of their rights simply because
those who should act do not act, act partially, or fail to monitor what
they are doing. Moreover, judges do not cease to be accountable be-
cause they are not elected. Their accountability remains. It is not elec-
toral accountability but value accountability, and that must guide
their decision-making process.
The question then arises as to how the orders made by the Court
in public interest litigation can be enforced. The orders made by the
Court are obviously not self-executing. They have to be enforced
through State agencies; if the State agencies are not enthusiastic in
enforcing the Court orders and do not actively cooperate in that task,

24. Id. at 834-37.

25. Hussainara Khatoon v. State of Bihar, 1979 A.I.R. 1360 (S.C.).
26. Khatri v. Bihar, 1981 A.I.R. 928 & 1068 (S.C.).
27. Sheela Barse v. State of Maharashtra, 1983 A.I.R. 378 (S.C.).
1985] ADDRESS

the object and purpose of the public interest litigation would remain
unfulfilled. The consequence of the failure of the State machinery to
secure enforcement of the Court orders would not only be to deny
effective justice to the disadvantaged groups on whose behalf the par-
ticular public interest litigation is brought, but it also would have a
demoralizing effect and people would lose faith in the capacity of pub-
lic interest litigation to deliver justice.
We therefore thought that it was necessary to evolve a methodol-
ogy for securing enforcement of Court orders in public interest litiga-
tion and, with this end in view, we started appointing monitoring
agencies. In a case brought by a journalist for protection of women in
police custody, the Supreme Court gave various directives and asked a
woman judicial officer to visit the police lock-ups periodically and to
report to the High Court whether the directives were being carried
out. 28 In another case relating to quarry workers, the Supreme Court
gave elaborate directives, to which I have referred earlier. With a view
to securing implementation of these directives, the Supreme Court ap-
pointed the Joint-Secretary in the Ministry of Labor to visit the stone
quarries after about three months and ascertain whether the direc-
tions given by the Court had been implemented or not.29 The same
strategy was followed by the Supreme Court in several cases. This is a
new strategy which is in the course of evolution. The Supreme Court
is still experimenting with it, and trying to mold and develop it.
I must straightaway concede that public interest litigation is still
in its infancy. The Supreme Court and the High Courts are experi-
menting with different methods and strategies in an effort to solve the
problems thrown up from time to time by public interest litigation.
There can be not doubt, however, that public interest litigation is one
of the most powerful weapons invented by the Court for the purpose
of delivering distributive justice to disadvantaged groups of people. I
firmly believe that in the years to come the Supreme Court of India
will have to concentrate on evolving innovative techniques and on
creatively developing new strategies for perfecting this powerful tool
of public interest litigation.

28. Id. at 382.

29. Bandhua Mukti Morcha v. Union of India, 1984 A.I.R. 802, 836-37 (S.C.)