"Though the PIL was originally intended to
give access to those who would otherwise have no voice, it is easily
captured by articulate and well organised interest groups".
Who is the 'public'? The role of the Public Interest Litigant. The role
of the Court has become particularly contentious now that access to the
courts via the Public Interest Litigation (PIL) process has spread well
beyond its original rationale. Far from only serving the poor and
disadvantaged who would not otherwise have access to the court, PIL is
now widely available to anyone claiming the public interest. The result
is that procedural safeguards are circumvented even when the normal
writ procedure would not render the court inaccessible. Cases
contesting the treatment of wild monkeys in Delhi jostle with cases
contesting the right of private schools to conduct admission interviews
for very young children. It has been argued that this has increased the
workload of High Courts and the Supreme Court, which in itself
obstructs access to justice for the most disadvantaged and decreases
the Court's ability to justice. But whether PIL cases make a
significant contribution to the vast increase in the court's docket
remains controversial. Certainly the statistical case is not made out.
More fundamentally, widening access beyond the original constituency of
poor and disadvantaged, has resulted in a crucial change in the
perspective from which the case is presented to the Court. Those who
initiate the case have the power to frame the issues for the Court.
Widening access therefore runs the risk that those who already have
political and economic power will drown or even scotch the voices of
the poor and disadvantaged. In this context, as Professor Upendra Baxi
puts it, the social conversation easily moves along 'an axis of
discursive inequality'. Indeed, the partial reversal in the court's
attitude to the poor and disadvantaged reflects, at least in part, the
change in the character of the public interest litigant. The power of
the initial litigant to shape the case is not, of course, absolute. The
decision as to whether to litigate and how to present it may itself be
the product of deliberative participation. Nor does the litigant have
the last word on the perspective from which to view the case. Framing
the issue is only the beginning of the conversation. Regardless of who
initiates the case, the interests of the poor or disadvantaged can be
addressed by interveners. However, this is an empty promise for those
who are insufficiently organised or who do not have the resources to
keep in touch with court developments. More frequently they will be
drawn into the litigation after the original orders have been passed,
to redress the implications of judicial intervention to which they
suddenly find themselves exposed. For example an interlocutory order
was passed on April 5, 2006 ordering removal of slum dwellers from
Nangla Machi slum in Delhi without hearing the people affected (SP
© No. 3419/1999). The affected people then brought special
petition requesting that they be heard. See Ram Ratan et al v.
Commissioner of Police, Special Petition, 9/05/06. Alternatively, the
Court itself could raise relevant issues, but this is no substitute for
participation. Ultimately, a conversation between equal participants is
premised on the ability of the poor and disadvantaged to make
themselves heard. This is not always the case.
This role of the litigant in framing the issue can be seen in the
controversial forestry cases initiated by a petition to prevent illicit
felling of timber in India's forests. In this case, the petitioner was
by an ex-estate owner, whose vast tracts of forest in Kerala had been
taken over by the forest department in the early 1990s, threatening
trees his family had protected for generations. In response to the
petition, the Court issued a series of interim directions requiring an
immediate cessation of all on-going activity within any forest in any
State throughout the country (unless it had the prior approval of the
Central Government), including a ban on the felling of trees in the
tropical forests. Total and immediate cessation of all saw mills and
mining in forests was ordered, and a complete ban imposed on the
movement of cut trees and timber from any of the seven North-Eastern
States to any other State of the country. This ban, however, did not
only capture large commercial enterprises. It also seriously affected
tribals and other poor people living within and around forests, who
depended on the forests for fuel, fodder, minor forest produce and
construction timber. Their position was made even more difficult by a
further order in 2002 order directing state governments to summarily
evict all illegal encroachment of forestlands since 1980. Because the
indigenous rights of many tribal forest dwellers were not established,
this led to widespread eviction of indigenous peoples throughout the
country, a result aggravated by the widening of the definition of
'forest' to include all areas conforming to the dictionary definition
and not just those officially registered as such. One of the key
problems was the paucity of proper participation by the indigenous
people themselves, either in the initial litigation or in government
decision-making. Although many interveners on behalf of tribals and
forest dwellers appeared at subsequent hearings, this was only in
response to the impact on these people of the court's original
directions.
The agenda of PIL is shaped as a dialectic between social activists and
courts. Although the PIL was originally intended to give access to
those who would otherwise not have a voice, it is easily captured by
articulate and well-organised interest groups. How then can this
dilemma be addressed?
The power of the litigants to frame the perspective can further be
illustrated by contrasting cases initiated by slum-dwellers asserting
rights to livelihood, with those initiated by environmentalists or
middle-class property owners asserting rights to a cleaner city. Thus
it was in response to petitions by pavement dwellers themselves that
the Court in the seminal case of Olga Tellis articulated the rights of
slum-dwellers to livelihood and therefore to remain in the city. The
role of the litigants is apparent from the opening paragraphs of the
case, which clearly present the petitioners' perspective. The Court not
only describes their plight with great sympathy, narrating the
conditions of appalling squalor in which they, together with nearly
half the population of Bombay, lived. It also stresses their
'respectability': they were in employment and had paid rent (to local
slum lords) for their shelters. 'It is these men and women who have
come to the Court to ask for a judgement that they cannot be evicted
from their squalid shelters without being offered alternative
accommodation.' By 1996, when cases were increasingly initiated by
environmentalists and middle class property owners, slum dwellers were
no longer characterised as rights-bearing citizens. Thus in the
waste-disposal case of Almitra, initiated by a public interest litigant
committed to the improvement of the urban environment, the Court
characterised the provision of alternative accommodation as rewarding
wrongdoers. According to the Court: 'The promise of free land, at the
taxpayers cost, in place of a jhuggi, is a proposal which attracts more
land grabbers. Rewarding an encroacher on public land with free
alternate site is like giving a reward to a pickpocket.'
From this it can be seen that the agenda of PIL is shaped as a
dialectic between social activists and courts. Although the PIL was
originally intended to give access to those who would otherwise not
have a voice, it is easily captured by articulate and well-organised
interest groups. How then can this dilemma be addressed? Underlying
this question is a debate both as to what constitutes the public
interest and who can legitimately represent it. So far as the public
interest is concerned, there is clearly an area in which it is obvious
that litigants are representing private trade or industrial interests.
Early cases held that standing would not be granted to those pursuing
private interests. It is open to state governments to contest the
bonafides of PIL petitioners, and they regularly do so, sometimes
successfully. Beyond that, however, as the range of litigated cases
demonstrate, the definition of public interest is wide and inclusive.
Perhaps this is inevitable, given the impossibility of a single public
interest in a highly diverse and complex society such as India. This
places the emphasis on who can be said to 'represent' the public
interest. Baxi argues that the meaning of representation is itself
contested. While representation usually entails 'speaking for others',
deliberative democracy aims to 'speak with others'. Viewed in this
light, for the court to impose criteria of representation might only
detract from the ability of PIL to redefine representativity as a
conversation between and among co-equal citizens. At the same time, it
must be recognised that the conversation between co-equal citizens can
only take place if the participants can in reality participate on equal
terms. The aim of PIL was always to prevent the court from simply
replicating the disparities in power and economic position in the wider
society. To keep this ideal alive requires ongoing vigilance. The
primary source of such vigilance must be social activism itself, rather
than the top-down control of the court. A key issue is therefore the
willingness and ability of social rights activists to bring social
action petitions in the appropriate contexts, and to formulate the
claim in such a way as to open up areas of conversation which the
ordinary paths of 'legality' by-pass and negate. However, the court
also has a role to play in ensuring that the voice of all is actually
heard, not just in response to a question already framed but in the
framing of the question itself.
These dilemmas are well illustrated in the Narmada dam litigation,
where the problems raised by allowing the Court to determine the
representativity of the plaintiff are highlighted. In this case, an
environmental group brought a PIL to ask the court to restrain the
government from proceeding with the construction of the dam on the
Narmada river, which would displace tens of thousands of people. Here
the Court refused to accept the petitioner's credentials in
representing the weaker sections of society. The petitioner was an
organisation which had campaigned against the dam largely for
environmental reasons, and although this included a concern for the
interests of those ousted by the project, the Court did not regard the
petitioner as an authentic representative of those interests. Instead,
it accepted the government's view that affected tribals and people of
weaker sections would in fact gain from resettlement, since many of
them were living as labourers or marginal farmers and would be given a
house and land of their own. Indeed, it was contended that opponents of
the dam were simply 'playing the card of tribals and weaker sections'
on behalf of the land-owning class, who were opposing the project
because it would deprive them of cheap labour. In coming to the
conclusion that the oustees would in fact be better off as a result of
the project, the Court gave no indication that it had made any attempt
to find a means whereby these groups could articulate their own
position. It was again only in subsequent hearings that these groups
were able to articulate their concerns as interveners, and this was
only after the Court had allowed construction to proceed pari passu
with rehabilitation measures (see further below).
One possibility is to attempt to confine PIL to those who would not
otherwise have a voice, thus returning PIL to its original constituency
of the poor and disadvantaged. It is arguable that where litigants do
not speak for those whose poverty or other social disadvantage is a bar
to access to justice, they should be bound by the rigours of normal
civil procedure, including narrow rules of standing, rigorous
fact-finding and limited remedial powers. For example, middle class
environmental groups agitating for slum clearance would need to bring a
claim in nuisance and follow the regular court procedure to do so.
However, this may present practical problems in screening out the
appropriate cases; and may in any event simply transpose the problem of
identifying appropriate litigants to an earlier phase of the process.
The power of the court to define who speaks would thereby be
unnecessarily
The Indian Supreme Court, faced with
powerful demands for eviction and displacement, has taken refuge in a
narrow concept of legality which relies on absence of proprietary
rights to shut down any claims at the threshold.
enhanced. An alternative might be an approach which gives greater
emphasis to opening up the procedure to all concerned, from the very
beginning of the litigation. Instead, the claim to represent the public
interest in cases such as environmental litigation should be
scrutinised, and avenues opened up from the very beginning of the
litigation to ensure representation for diverse parts of the public.
Thus as we have seen above, Michelman has argued that a Constitutional
Court should 'reach for the inclusion of hitherto excluded voices of
emergently self-conscious social groups'.
Appropriate role of the court
PIL appears to be most successful when the court intervenes to require
implementation of policies which have already achieved broad consensus
but through apathy, disorganisation or failure to prioritise have not
been put into action. The right to food case, as we have seen, turned
existing policies into fundamental rights and elaborated on them. The
court can also be effective in its intervention in cases where there is
a conspicuous gap in policy-making in areas affecting the most
fundamental rights, such as the right to dignity and equality of
mentally disabled people. A particularly important area in which the
court has been instrumental in filling a serious gap in legislation is
that of sexual harassment. In response to a PIL, the Court held that
sexual harassment constitutes a violation of women's constitutional
right to dignity, and drafted quasi-legislative guidelines, drawing on
internationally recognised norms. Here, however, the institutional
limitations of a court taking on a legislative role quickly became
apparent. The process of drafting a statute in line with the Court's
prescriptions have proved very difficult, because of the diversity of
situations the law needs to address. This is exacerbated by the court's
delineation of the issue as one for the public sector only
.
Where, however, the PIL challenges an existing policy backed by
powerful political forces, and established in the name of economic
development, the Court's grasp of its fundamental rights mission
becomes more unsteady. This has been painfully clear in an era in which
the forces of globalisation and the rhetoric of economic development
have permeated Indian policy-making. In such cases, the public interest
is easily transmuted to exclude the fundamental rights of the most
disadvantaged, either through a utilitarian calculus or through
equating the benefit to some parts of the population with the public
interest as a whole. Using familiar legal formulae, such as separation
of powers, legality and deference, courts have in several dramatic
cases endorsed the position of the powerful and the privileged at the
expense of the poor and marginal. Indeed, some would argue that the
deference to globalisation and multi-national capital makes sense of
the Court's simultaneous assault on pollution, corruption and labour
rights. This can be seen in three broad areas: urban development,
protection of the environment and dam development.
Urban development
Although India has had severe housing shortages and chaotic urban
planning for many years, urban development comes into focus in a
different way when the aim is to create cities which are attractive to
inward investment and global capital. In this light, urban development
requires orderly planning, effective services, anti-pollution measures
and public spaces; all of which immediately undermine the claim to
urban citizenship of the slum- and pavement-dwellers, the hawkers and
the homeless, who now constitute nearly a quarter of the population in
26 big Indian cities. Instead of aiming for integration, through
housing, services and schools, the focus is on removal. The Indian
Supreme Court, faced with powerful demands for eviction and
displacement, has taken refuge in a narrow concept of legality which
relies on absence of proprietary rights to shut down any claims at the
threshold. The result is to characterise all those without property
rights as encroachers, trespassers and even petty criminals. Yet the
guiding principle behind human rights is to challenge legality when it
deprives people of their rights. By failing to regard slum dwellers as
urban citizens with equal rights, the courts have strayed from their
human rights role.
This can be seen in the string of cases concerned with eviction of
slum-dwellers. Constituting of well over 40 million people , slum
dwellers have found themselves pitted against pedestrians,
town-planners, middle class homeowners, environmentalists and local
authorities in their struggle for minimum human rights. While lip
service is often paid to the duty to rehabilitate, relocation is
frequently to un-serviced sites inaccessible to schools or work, where
displaced people are required to pay for a piece of land with little
real utility to themselves. In such cases, the Court has neither
imposed a duty of restraint (against eviction) nor used its extensive
remedial powers to insist on implementation of positive duties to
provide housing and infrastructure. The result is that evicted
slum-dwellers are forced back into the illegal settlements as their
only means of making a living. This can be dated back to Olga Tellis
itself, which, although using the vocabulary of a right to livelihood,
in fact imposed only a duty to consult those facing eviction.
Particularly serious was the refusal to insist that alternative pitches
with proper infrastructure be provided as a condition precedent to
removals. In one sense, the court's reluctance to enforce such positive
duties is difficult to explain since the Court could have followed its
own example in the right to food case and insisted on the
implementation of existing policy documents, thus turning a policy
commitment into a fundamental right to livelihood and shelter. In
particular, the Delhi Master Plan aims to deal systematically with
Delhi's housing problems through integration of slum dwellers into
housing with the necessary infra-structure and accessibility to sources
of work. The plan, which includes a significant land allocation, has
been consistently ignored.
Environmental cases
Overlapping with housing issues, and similarly caught between a
fundamental rights approach and the utilitarianism of global
capitalism, are environmental concerns, an arena in which the court has
been a major player. Many of the environmental cases upheld by the
Court have of course benefited the poor as well as the middle classes.
The Court's intervention after public spirited individuals drew its
attention to the dangerous leak of oleum gas from factory premises in
Delhi and the discharge of toxic effluents into the soil in Udaipur are
good examples. In the famous Vehicular Pollution cases , the Court was
faced with government statistics showing that vehicles contributed 70%
of the air pollution in Delhi and other major cities. In response, it
ordered strict measures to decrease such pollution, including the
conversion of all public transport in Delhi to the use Compressed
Natural Gas rather than petrol. The resulting drop in pollution clearly
benefits all. Such cases are, however, consistent with a judicial
approach which views cleaner cities as an essential way of attracting
global capital. Other aspects of the environment raise more complex
conflicts of interest. In one of its earliest decisions, concerned with
illegal quarrying which was destroying the Musoorie hills near Delhi
and interfering with the water system, the Supreme Court was able to
take into account the effect of closing the mines on workers jobs. Thus
as well as prohibiting the mining, the Court directed that task force
be set up to engage workers in the task of aforestation and soil
conservation of reclaimed land. However, in the clash between the drive
for cleaner cities and the needs of the urban poor, the former has
invariably triumphed. Although rehabilitation and resettlement is
sometimes ordered, as has been seen above, their efficacy is seriously
weakened by allowing resettlement to be postponed while environmental
measures proceed.
The Indian Supreme Court, faced with powerful demands for eviction and
displacement, has taken refuge in a narrow concept of legality which
relies on absence of proprietary rights to shut down any claims at the
threshold.
A particularly ferocious instance of the Court privileging
environmental issues over people was the action in May 1997 of the
Bombay High Court in ordering the eviction of informal settlement
dwellers adjacent to the Sanjay National Park. The Court was responding
to a petition filed in 1995 by the Bombay Environmental Action Group
(BEAG), asking the Court to 'remove forthwith' the 'encroachers' in
order to ensure protection of 'the environment and all its aspects'.
Not only did the Bombay High Court direct the relevant authorities to
evict persons from their homes. It also specifically ordered the
demolition of shelters and the destruction of all belongings and
construction materials. As many as half a million slum-dwellers were
potentially affected. A similar pattern can be seen in the decision to
clear the one of the biggest and oldest slums in Delhi, home to 150,000
people and 40,000 homes, which had existed for many years on the banks
of the Yamuna river. The slum was demolished in 2004 by order of the
High Court of Delhi, in response to a petition brought by citizens
concerned at the pollution and encroachment on the river. About a fifth
of the residents were resettled on the outskirts of Delhi, without
local services or transport into the city. The rest were left to their
own devices. Although the High Court directed that proper basic
amenities, including power, water, sewerage, schools, and
transportation be provided in the rehabilitation colonies, it refused
to stay the eviction until these has been complied with. By 2006,
little had been done to implement these directions. While no-one is in
any doubt that the Yamuna is seriously polluted, the extent to which
the slums contribute is controversial. A study titled Yamuna Gently
Weeps by RN Barucha puts the contribution of slums to such pollution at
less than 1 percent.
Development and dams
A third area in which the PIL has required the Court to face up to
powerful political and economic interests in the name of development
concerns the much contested Narmada dam project. This concerned the
construction of a dam on the Narmada river, which would displace many
people and submerge natural forest land. The claimed benefits included
providing irrigation to drought prone areas, drinking water facilities
to thousands of villages and urban centres, as well as power
generation. Proposals for the project, initiated in 1947, had been the
subject of numerous reports and consultations, as well as a detailed
award by a statutory tribunal. Financed by a loan from the World Bank,
construction eventually began in 1987 and the first ten sluices were
closed in February 1994. Almost immediately, a PIL was filed, asking
the court to restrain the government from proceeding with the
construction of the dam and to order the sluice gates to be closed. The
facts were heavily contested.
The petitioners claimed that the environmental clearance given in 1987
was based on incomplete evidence and the proper studies had not been
undertaken. They also claimed that the right to life of those who were
ousted by the dam had been breached, since it was impossible to fully
substitute for their way of life through rehabilitation measures. In
any event, they argued, there was insufficient public interest to
justify the displacement, given that serious doubts had been raised
about the benefits of the project, in particular, that it would only
bring water to the margins of drought-prone areas and even then would
have little real effect. For this they relied on the 1992 report of an
Independent Review set up by the World Bank, which concluded that
decisions had been made on the basis of questionable or unfounded
assumptions without a full understanding of the consequences, that the
benefits were overstated and the environmental impact not adequately
addressed. Most serious, it found rehabilitation of all those displaced
was not possible. The government cited its own alternative assessment,
which referred to the many benefits the scheme would bring,
particularly since it was making use of water which otherwise would
flow unused into the sea. Even the extent of the displacement was
contested, with the government claiming that the project would affect
'only' 245 villages, of which 241 were only partially affected.
Faced with such strongly opposing currents, the Court decided to defer
to the political process. In its view, the decision as to whether to
have an infrastructure project, and how it was to be executed, were
part of the policy-making process, a field into which courts should not
transgress. Its assessment of the development of PIL is illuminating:
'PIL was an innovation essentially to safeguard and protect the human
rights of those people who were unable to protect themselves. With the
passage of time, PIL jurisdiction has been ballooning so as to
encompass within its ambit subjects such as probity in public life,
granting of largesse in the form of licences, protecting environment
and the like. But the balloon should not be inflated so much that it
bursts. Public interest litigation should not be allowed to degenerate
to becoming publicity interest litigation or private inquisitiveness
litigation.' The court reiterated its role in protecting the
fundamental rights of the people. But, it continued, 'In exercise of
its enormous power, the court should not be called upon to or undertake
governmental duties or functions. The court cannot run the Government…
In a democracy, welfare of the people at large and not merely of a
small section of the society has to be the concern of a responsible
government. … For any project which is approved after due deliberation
the court should refrain from being asked to review the decision just
because a petitioner in filing a PIL alleges that such a decision
should not have been taken because an opposite view against the
undertaking of the project, a view which may have been considered by
the government, is possible. When two or more options or views are
possible and after considering, the government makes a policy decision,
it is then not the function of the court to go into the matter afresh
and in a way sit in appeal over such a policy decision.' In particular,
where there are conflicts of interest, such as the interest of the
people of Gujurat in having access to drinking water, and the people
whose houses and land would be submerged, it was for the government to
resolve, and the Court should not sit in appeal.
The majority of the Court achieved this outcome in two ways. First, it
held that the petitioners were too late to challenge the construction
of the dam itself. Although it accepted that complete data with regard
to the environment were not available when the Government gave
clearance in 1987, it was held that the petitioners should have acted
immediately to challenge the project, rather than waiting until
hundreds of billions of public money had been spent. 'It is against the
national interest and contrary to established principles of law that
decisions to undertake developmental projects are permitted to be
challenged after a number of years during which period public money has
been spent in the execution of the project.' It was therefore only its
concern for the protection of the fundamental rights to life of the
oustees in respect of the relief and rehabilitation measures that the
Court was prepared to entertain the petition.
Secondly, the Court used a very light touch standard of review, asking
only whether decisions had been taken bona fide and with 'application
of mind'. On the basis the very many discussions and documents received
by the government, the Court held that it was not possible to conclude
that the environmental clearance had been given without proper
application of mind. However, there is a middle ground between
substituting for the decision of the relevant authorities, and
deference to authority decision-making. This can be seen in the
dissenting judgement of Bharucha J. While he did not claim that the
Court should make the decision, he did hold that where the impact on
the environment could have disastrous consequence for many generations,
the Court's constitutional responsibility under Article 21 (the right
to life) required the Court to ensure that the project did not go ahead
until those best fitted to do so have had the opportunity of gathering
all necessary data and assessing it. Such data had not, in his view,
been fully gathered. Environmental clearance was based on next to no
data in regard to the environmental impact of the project, and
therefore, in his view, could not be considered clearance at all.
So far as the right to life of the oustees were concerned, the majority
was content to accept the contention of the government that the planned
resettlement and rehabilitation would leave oustees better off than
before. Thus it was held not only that displacement of the tribals and
other persons would not per se result in violation of their fundamental
or other rights; but also that on their rehabilitation at new locations
they would have more and better amenities than those they enjoyed in
their hamlets; and their gradual assimilation in the mainstream of the
society would lead to betterment and progress. The majority was in any
event prepared to go along with a utilitarian calculus, which saw the
cost born by those ousted by the dam as well compensated for by the
benefits to others including fulfilling the right to water of people
who suffer due to water shortage. Thus, the court refused to require
the scheme to be put on hold, either to carry out further impact
assessments, or to institute rehabilitation measures should be
implemented pari passu with the raising of the height of the dam. This
again contrasts with the dissenting judgement, which insisted that the
rehabilitation projects be both designed and implemented before the
reservoir was filled, rather than, as the majority held, simultaneously
with the development of the dam. In practice, is clear that promises to
rehabilitate have been reneged on and states have disputed the
legitimacy of many claims on such grounds as that they are not
permanently affected or are the sons of the original oustees.
Nevertheless, in subsequent hearings, while insisting that
rehabilitation be implemented, the court has refused to halt
construction until such rehabilitation has been accomplished.
Conclusion
How then should the innovative PIL procedure be assessed in respect of
the promotion of positive duties arising out of human rights? Baxi
argues that 'the growth in constitutional faith overloads adjudicatory
power with great expectations, which it does not quite efficiently
manage and which it may not always fulfil.' The result has been that
'judicial activism is at once a peril and a promise, an assurance of
solidarity for the depressed classes. as well as a site of betrayal.'
Indeed, he concludes: 'Courts are, at the end of the day, never an
instrument of total societal revolution: they are best… instruments of
piecemeal social engineering… never a substitute for direct political
action.'
This suggests that the PIL jurisdiction should not be judged by
expectations it cannot fulfil, but instead be tailored to achieve what
it was intended for. A central aspect of this mission is to step in
when government fails to act to achieve positive freedom and fulfil
human rights. At the same time, there is no reason to believe that
courts will always succeed where government has failed. Even under the
PIL procedure, courts have limited fact-finding facilities, and
appointed committees do not in themselves have the resources to ensure
that court decrees are fulfilled. In that sense, courts cannot
substitute for recalcitrant governments. Nor can they replace political
activity. What courts can do, however, is to act as a catalyst for the
democratic pressures which ultimately make recalcitrant governments
act. At its most basic, the PIL procedure, courts have limited
fact-finding facilities, and appointed committees do not in themselves
have the resources to ensure that court decrees are fulfilled. In that
sense, courts cannot substitute for recalcitrant governments. Nor can
they replace political activity. What courts can do, however, is to act
as a catalyst for the democratic pressures which ultimately make
recalcitrant governments act. At its most basic, the PIL procedure
enables ordinary people to require governments to be accountable, that
is, to come to court and explain and justify their actions or
inactivity. Beyond that, the PIL procedure, with its open doors to all
interested parties, facilitates genuine conversation, requiring
governments to listen and interact with civil society, and groups
within civil society to listen and interact with each other. Most
importantly, it permits the conversation to take place on equal terms.
The judicial forum makes it possible to restore what Baxi calls the
republican virtue of civility, that is that everyone is treated as an
equal citizen. To maintain this, courts should take care that to avoid
capture by those who already have political power in society, remaining
true to its original mission of ensuring that the poor and
disadvantaged are given an equal voice within judicial proceedings.
Courts should also remain clearly focussed on their human rights role,
both in respect of positive duties and duties of restraint. This
entails avoiding both the temptation to range too far from fundamental
human rights (as in whether small children should be interviewed for
private schools) and the temptation to retreat into a narrow concept of
legality or deference to authority.
But should the court involvement end with the conversation? Or should
it go much further, as the Indian court has done, to set the direction
for change and then police its implementation? Judicial decisions must
be taken; thus it is inevitable that there should be moments of closure
in the conversation.
However, as Habermas shows, such moments are only pauses in the
discourse. Moreover, as Baxi puts it, there are 'civil' and 'uncivil'
means of applying closure. The way in which closure is effected can
open up new beginnings, but can also constitute a point of no return.
The ideal would be for the court to energise the political process,
rather than paralysing it by taking over its functions. Positive
duties, as the directive principles envisage, should be primarily
fulfilled by the initiative of the democratic process itself, with the
courts acting as facilitators rather than substitutes. Moreover, in
order to achieve a just closure, the court should not see its role as
not a free-wheeling political one, but one which is structured by the
human rights values from which it gains its legitimacy. The danger of
the PIL procedure is that its openness to many voices might lure courts
into reaching closure in terms of interest bargaining rather than
through a deliberative mechanism whereby equal parties to a
conversation flesh out and apply human rights values. Notions of the
public interest as a pluralist's bazaar, in which interest groups
bargain according to their economic and political strength, are not
appropriate in the judicial forum. But its openness to many
perspectives is also its strength, provided that in transcending the
limitations of the bipolar adversarial process, PIL is used to
facilitate deliberation in place of interest bargaining.
The court's continuing role in supervising the implementation of
positive duties carries similar risks and strengths. By allowing
litigants and interveners to return repeatedly to the court, PIL
ensures that closure is dynamic and flexible, a continuation of the
social conversation in order to find the most effective way of
achieving its human rights mission. On the other hand, if it takes over
too many executive functions, the ongoing supervisory jurisdiction of
the court, whether through commissions or otherwise, can itself become
rigid and inaccessible, particularly if it means a Supreme Court
hearing every few months. Energising the political process requires the
creation of structures which can themselves manage implementation,
which are responsive to the range of interests, and which can deal with
polycentric implications, with judicial supervision acting as a
facilitator rather than a substitute. This is of course a delicate
tightrope to walk, but is nevertheless a goal to be aspired to.
http://www.combatlaw.org/information.php?article_id=1045&issue_id=37
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