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Extracts of the keynote address made by P. N. Bhagwati, former Chief Justice of India at the 16th annual sessions of the Organization of Professional Associations (OPA) of Sri Lanka

The thrust of public interest litigation is directed against the establishment and the vested interests. It is a matter of great pride and satisfaction for me to observe that the Government of India whole-heartedly supported the strategy of public interest litigation and in fact the committee for implementing Legal Aid Scheme, which was a committee set up by the Government of India for establishing legal aid programmes in the country, promoted this strategy.

There was initial opposition to this strategy from the bureaucracy but courts in India have been able to considerably dilute bureaucratic opposition to public interest litigation by emphasizing that public interest litigation is not in the nature of adversary litigation, but its a challenge and an opportunity to the Government to make basic human rights meaningful for the people and to ensure distributive social justice to them and that it is a collaborative effort directed towards that end.

When the court makes an order in a public interest litigation, it does so not in a spirit of confrontation or criticism or with a view to tilting at executive authority, but for the purpose of drawing the attention of the executive to its failure or inaction in eliminating and eradicating oppression, exploitation and violation of human rights and ensuring the people the rights and benefits conferred by social legislation and other social and economic rescue programmes and requiring the executive to carry out its constitutional and legal obligations towards the people and particularly the have-nots and the handicapped.

Largely due to the efforts of the highest court in the land, public interest litigation has been effectively conceptualized and it has been institutionalized.

It has come to be recognized as an effective weapon in the armoury of the law for securing implementation of the constitutional and legal rights of the people and ensuring social justice to them.

The public interest litigation in India is directed towards finding "turn around" situations in the political economy for the disadvantaged and other vulnerable groups. It is also concerned with other more diffuse and less identified groups.

Its focus is the immediate as well as long-term resolution of the problems of the people including in particular weaker sections of humanity in our quest for distributive justice. Moreover, in public interest litigation the disadvantaged are not regarded just as beneficiaries in a 1 to 1 relationship with the designated lawyer. They are very much a part of, again to borrow a phrase from Professor Upendra Baxi, "taking suffering seriously".

The substance of public interest litigation is much wider than that of public interest litigation of United States. In essence, much of public interest litigation focuses on expose of exploitation of the disadvantaged and deprivation of their rights and entitlements by the vested interests and repression and violation of human rights by the agencies of the state and other custodial authorities. It also seek to ensure that the authorities of the state fulfill the obligations of law under which they exist and function.

Now how did this concept of public interest litigation emerge in India? One of the main problems which impeded the development of effective use of the law and the justicing system in aid of the disadvantaged was the problem of accessibility to justice.

Article 32 of the India Constitution which occurs in Part III of the Constitution dealing with fundamental rights confers the fundamental right to move the Supreme Court by appropriate proceeding for enforcement of fundamental rights and vests power in the Supreme Court to issue any direction, order or writ for enforcement of such fundamental rights.

Though this Article of the Constitution is couched in the widest terms and under it any one can approach the Supreme Court for enforcement of fundamental rights, the position which obtained 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 justice.

The court was for a long time used only by those who were wealthy and affluent and who, to borrow Narc Gallanter's phrase were repeat players of the litigation game. The poor were priced out of the judicial system.

It was impossible for the common people to approach the court for justice because they lacked awareness, assertiveness and availability of machinery for enforcing their constitutional and legal rights.

The Supreme court found that the main obstacle which deprived the poor and the disadvantaged of effective access to justice was the traditional rule of locus standi which insists that only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest can bring an action for judicial redress.

It is only the holder of the right who can sue for actual or threatened violation of such right and no other person can file an action to vindicate such right.

This rule of standing was obviously evolved to deal with right duty pattern, which is to be found only in private law litigation.

But it effectively barred the door of the court to large masses of people who on account of poverty, ignorance or incapacity are unable to avail of the judicial process. It was felt that even if legal aid offices are established for them, it would be impossible for them to take advantage of the legal aid programme 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 those rights.

The Supreme Court, therefore took the view that it was necessary to depart from the traditional rule of locus standi and to broaden access to justice by providing that where a legal wrong is done or a legal injury is caused to a person or to a class of persons by violation of their constitutional or legal rights and such persons or class of persons is, by reason of poverty or disability or socially or economically disadvantage position, unable to approach the court for relief, any member of the public or social action group acting bona fide can maintain an application in the High Court or the Supreme Court seeking judicial redress for the legal wrong or injury caused to such person or class of person.

The Supreme Court also felt that when any member of the public or social organisation espouses the cause of the people whose human rights are affected by State action, he should be able to move the court even by just writing a letter, because it would not be right or fair to expect a person acting pro bono publico to incur expenses from his own pocket in order to go to a lawyer and prepare a regular writ petition to be filed in court for enforcement of the fundamental rights of the poor and deprived sections of the community.

In such case, a letter addressed by him to the court can legitimately be regarded as an appropriate proceeding, within the meaning of Article 39 of the Constitution. The Supreme Court thus evolved what has come to be known as epistolary jurisdiction where the Court can be moved by just addressing a letter on behalf of the affected class of persons.

This was a major breakthrough achieved by the Supreme Court in bringing justice closer to the large masses of the people.

The Court had for a long time remained the preserve of the rich and the well-to-do, the landlord and the gentry, the business magnate and the industrial tycoon and had been used only for the purpose of protecting the rights of the privileged classes.

It is only the privileged classes who had been able to approach the Court for protecting their vested interests. But now for the first time the portals of the Court were thrown open to the poor, the ignorant and the illiterate with the result that their cases started coming before the Court through public interest litigation.

The have-nots and the handicapped, the poor and the exploited began to feel for the first time that there was an institution to which they could turn for redress against denial of their rights.

They could seek protection against Governmental lawlessness and administrative deviance. The Supreme Court became a symbol of hope for the deprived and vulnerable sections of Indian humanity. It acquired a new credibility with the people and began dispensing justice to under trial prisoners, women in distress, juveniles in jails, landless peasants, bonded labourers and many other cases involving violation of their human rights including environmental and health problems, disadvantaged groups of people in a manner unprecedented in the annals of judicial history.

This new strategy evolved by the Supreme Court was unorthodox and unconventional. It shocked the conscience of conservative lawyers and judges clinging to the well worn-out values of Anglo-Saxon jurisprudence.

They thought that what the Court was doing was heretical. But so far as the large masses of people in the country are concerned, they warmly applauded this new initiative taken by the Court.

They began to feel for the first time that the highest Court in the country was shedding its character as upholder of the status quo and was assuming a new dynamic role as the protector of the rights of the people through the adoption of a highly goal-oriented and activist approach by some of the judges.

Now right from the commencement of public interest litigation one difficulty, which manifested was on account of the total unsuitability of the adversarial procedure to this new kind of litigation.

The adversarial procedure is supposed to be based on the rule of equality and fairness. Consequently, adversarial procedure can operate fairly and produce just result only if the two contesting parties are evenly matched in strength and resource, which is quite often not the cases.

Where one of the parties to the litigation belongs to the weaker section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversarial system of justice not only because of difficulty in getting competent legal representation but, more than anything else, because of inability to produce relevant evidence before the Court.

Problem of proof, therefore, presented obvious difficulty in public interest litigation brought to vindicate the rights of the people including the poor.

This problem becomes very acute in many cases because often enough, the authorities or vested interests which are the respondents, deny on affidavit the allegations of exploitation, repression and denial of rights made against them: sometime the respondents contest the bona fides or the degree of reliability of the information of the social activists who come to the Court; sometime they attribute wild ulterior motives to such social activists and sometimes they denounced the source on which the social activists rely, namely, media and investigative reports of social scientists and journalists.

How then is evidence to be produced before the Court on behalf of the people affected in support of their case? It is obvious that it would be impossible for the public-spirited citizen or the social action group which has brought the litigation to gather relevant material and place it before the Court. Of course, there may be well organised social action groups, which may be able to carry out research before bringing public interest litigation and they may be able, on the strength of their own resources, to establish the case on behalf of the people including the disadvantaged groups.

But such social action groups would be very few and, by and large, it would be difficult for them to collect the necessary material.

What is the Court to do in such cases? Would the court not be failing in the discharge of its constitutional duly, if it refuses to intervene on the ground that the relevant material has not been produced before it by the petitioner? If the Court were to adopt a passive approach and decline to intervene in such cases because relevant material has not been produced by the party seeking its intervention, the fundamental rights would remain merely an illusion so far as the persons affected are concerned.

The Supreme Court, therefore, started experimenting with different strategies, which involved departure from the adversarial procedure without in any way sacrificing the principle of fairplay.

It was found that the problems of the people and weaker sections of the society which had started coming before the Court were qualitatively different from those which had hitherto occupied the attention of the Court and they needed a different kind of approach.

It was necessary to abandon the laizzes faire approach in the judicial process and device new strategies and procedures for articulating, asserting and establishing the claims and demands of the people.

The Supreme Court, therefore, initiated the strategy of appointing social-legal commissions of inquiry. The Supreme Court started appointing social activists, teachers, researchers, journalists, Government Offices and judicial officers as Court Commissioners to visit particular locations for fact-finding and to submit a quick and detailed reports setting out their findings and also their suggestions and recommendations.

There have been numerous cases where the Supreme Court has adopted this procedure.

However, even after all these innovations made by the Supreme Court, the question remained as to what are the relief which the Court can give to the affected people whose problems are brought before the Court through public interest litigation.

The Court had to evolve new remedies for giving relief. The existing remedies which were intended to deal with private rights situations were simply inadequate.

The suffering of the disadvantaged could not be relieved by mere issue of prerogative writs of certiorari, prohibition or mandamus or making orders granting damages or injunction, where such suffering was the result of continuous repression and denial of rights.

The Supreme Court, therefore, tried to explore new remedies, which would ensure distributive social justice to the deprived sections of the community.

To be continued

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