A functional dimension of social justice

Public interest litigation is the incarnation of judicial activism in its people-oriented litigative dimension and environmental preservation. Justice becomes a living reality only if PIL becomes a pragmatic facility for the common people.

The basic structure of the feudal Indian legal system with its dated, diehard methodology, still smacks of fossil features and a colonial-curial culture. Its substantive and procedural features are conditioned by values of Victorian vintage.

Our Constitution, on the other hand, envisions a radiant socio-economic scenario and forward-looking forensic infrastructure. Such a vision seeks to ensure that its creative mission may functionally fulfil the fundamental rights and egalitarian aspirations of the vast population which is even now governed by an arcane establishment. This establishment’s ‘survival after death’ philosophy is incongruous with the ‘socialist secular democratic’ developmental order which is our swaraj objective. The revolutionary tryst with destiny that ‘We, the People of India’ made on gaining Independence, remains a tragic illusion and an irony of jural magniloquence.

Here is a comment by jurist F.S. Nariman in his recent book, India’s Legal System: Can It be Saved?, with latent content between the lines and an arboreal metaphor making the point spicy and sharp:

“The legal system in India is inextricably linked with the English language: both were originally imported from abroad… Originally an English transplant with Anglo-Saxon roots, the legal system in India has grown over the years, nourished in Indian soil. What was intended to be an English oak has turned into a large, sprawling Indian banyan tree, whose serial roots have descended to the ground to become new trunks.

“Sir Vivien Bose, a distinguished judge of the Supreme Court of India between 1951 and 1958, wrote in an article in the Law Quarterly Review that ‘the only certainty about the migration of the common law of England into India is that the English brought it, their judges administered it and that it infiltrated deep into the laws of this country and has, to some extent, moulded its thoughts and customs.

“The common law is now inextricably intertwined with and has become an integral part of the Indian legal system.”

Law India, with its obsolescent Indo-Anglian codes and ‘lordship’ robes, misses the socially sensitive fundamentals and the crimson economic grammar. It benumbs the common people’s deprivations and expectations and inhibits the advance of the backward Indian humanity. Regrettably, communalism, regionalism, gender and class biases and the globalisation-cum-private corporatisation kink do not spare the judiciary in its perspective and performance. So much so that the Constitution remains a merely eloquent parchment. Many a judicial Judas has pretended loyalty to the Constitution. Worse is the fate in the Cabinet and the House. Is swaraj a camouflage for satellite raj?

The cults, semantics, outfits and obsolete processes of the pre-Independence days must go into oblivion and the high bench must transform our swaraj jurisprudence with a creative commitment. In order to realise this grand goal, tools, technologies and master-engineers tuned to our constitutional revolution are needed. The activist judges are the legal locomotive, and the technology of transformation is inscribed under Articles 32, 141, 142 and 144. And public interest litigation is the versatile modus operandi in its forensic flavour.

But today the nation’s instrumentalities, including the judicature, forsake socialist egalite and economic democracy. They lag, laze and languish in the shadow of Whitehall, the White House and the commands of global big business. They commercialise our administrative culture, jejunise our judicial jurisprudence and legitimise grab-economics. Our national environment is pathologically polluted. Consumerism has ruined the simplicity and goodness of people’s life. Why does our high bench hesitate to deliver vibrantly socialist swaraj pronouncements in the interests of India’s billion-plus humans under the command of the Constitution? The finest hour of the Supreme Court of India will arrive only when it performs as the Supreme Court for Indians.

This chronic subjection of the Ganga to the Thames should end. So should the subjection of the Indian judicial instrumentality, which is oath-bound to uphold suprema lex (“the welfare of the people shall be the supreme law”) to Westminster. Failure here is functional frustration of the judicature. The democracy of judicial remedies in a land of mass destitution, environmental injury and expensive Bench-Bar-run adversarial process, is a socialist casualty and an ecological frailty.

Law is what judges say it is: their jurisdiction must be salvationary. A medieval or imperial brood of ‘lordships’ will mean only a constitutional imbroglio. Judges, all of them, must respond to a constitutionally revolutionary mindset with a collective and conscientious vision and mission. The Supreme Court and the courts below it must be accountable to the people judged by this test, lest their professional independence create arbitrary absolutism as social engineers.

Warren E. Burger, former Chief Justice of the U.S. Supreme Court, wrote: “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis… In a country like ours, no public institution, or the people who operate it, can be above public debate.”

A supreme appointment and performance commission, in which no executive or judicial echelons shall be members, will be a great monitoring instrument. This, of course, demands the greatest caution, responsible composition and urgent constitutional implementation.

Public power is a public trust and the paramountcy of accountability to the people is a democratic imperative. The judiciary is no exception to this fiduciary necessity so that the common people shall have access to the justice system which must hear the grievance of any citizen and give him or her appropriate remedy as provided in the Constitution. So long as unity and fraternity are basic to the rule of law, any countryman is a neighbour to his fellow-citizen and shares his cause of action. The judicature is not conceptually divisive or individualistic but is responsive to the whole community.

The law of locus standi is therefore expansive. Wherever there is an injury which affects the people at large or an individual, it is not a narrow issue. Anyone who is not a busybody and who has sincere concern is at home in court when he sues to espouse a community grievance or public cause. This is the root rule of public interest litigation (PIL), ideologically socialistic and paradigmatically sound. ‘We, the People of India’ have resolved to secure to all its citizens justice, social and economic, and liberty, equality and fraternity. To deny this collective faith is to defy the republic’s foundation.

PIL is the incarnation of judicial activism in its people-oriented litigative dimension and environmental preservation. Fiat justicia (‘let justice be done’) becomes a living reality only if PIL becomes a pragmatic facility for the common people. There is a profound political philosophy behind PIL, which some learned brethren miss. Judicial allergy to PIL therapy — many on the high bench suffer this pathology — betrays high-brow hostility unbecoming of our constitutional instrumentality and the oath of office of judges. Every cause has a martyr. A judge who challenges PIL debunks the Supreme Court’s democratic dimensions. Some judicial neophytes and charlatan jurists at times make egregious errors during their institutionally accountability-free incumbency.

A supreme judicial commission, majestic in its composition, is a democratic ‘must’ if social justice is to be an imperative of our republic’s rule of law.

http://www.thehindu.com/2008/03/27/stories/2008032754151000.htm