• Introduction

This chapter seeks to confirm the second hypothesis of this paper which propounds that the effective implementation of epistolary jurisdiction, with comparative application of Indian jurisprudence on the concept in Kenya, will enhance access to justice for the poor by by-passing the constraints emanating from the lack of legal identity, high court and legal fees, complex and technical legal procedure and the lack of effective remedies in the Kenyan judicial process. The basis of selecting India as a country of choice for the comparative study lies with its vibrant, human rights centered judiciary that has correctly and instructively advanced the concept of epistolary jurisdiction within its judicial process.

The first part of this Chapter discusses the legal basis upon which epistolary jurisdiction was developed in India. It discusses the concept of Social Action Litigation as the jurisprudential basis of epistolary jurisdiction. The second section of this Chapter provides a historical insight into India’s judicial process, prior to the enactment of Epistolary jurisdiction, which was marred with ineffective and unconducive legal procedures to the majority of the Indian citizenry. This necessitated the invention of an alternative to the traditional and rigid rules of locus standi that were inconsistent with the needs of the poor majority in the country.

The third section of this Chapter seeks to analyse the development and application of Epistolary jurisdiction in India; the consequent rules of procedure that were created to facilitate the efficient use of this new concept are also highlighted therein. Finally, the Chapter concludes with brief criticisms of Epistolary jurisdiction in India and subsequent suppositions of how such shortfalls may be amended in the application of Epistolary jurisdiction in Kenya.

  • Social Action Litigation and Epistolary Jurisdiction

Epistolary jurisdiction was first developed in the United States in the case of Gideon v Wainwrighf^when a prisoner’s postcard was accepted by the court as a petition, however, the principle of epistolary jurisdiction has by large been developed in India where its resultant form has been adapted and adopted in other South Asian countries including Pakistan and Bangladesh. The Supreme Court of India in its efforts to promote justice for all, that is the rich and poor, over­privileged and under-privileged, disadvantaged and vulnerable, exploited and excluded alike, has [1] developed a special breed of public interest litigation which is known as Social Action Litigation.[2] SAL was developed as a response to the problem most people in India and many other third world countries face, poverty and inequality among classes. The Supreme Court in India realized that access to court and redress of injustices had become a prerogative of the rich and wealthy, an arena of legal quibbling for men with long purses.[3] Meanwhile, there was a large number of Indians, most of them poor, illiterate or unaware of their constitutional rights who were unable to access the courts and find legal redress for their abuses. The adversarial system of litigation was a huddle in affording poor people legal redress and it was essential to rethink the entire litigation system and move away from Western influenced models of thinking in order to accommodate the circumstances of poor people. Since the adversarial system was based on the rule of fairness among parties, the poor and disadvantaged could not possibly be held to be on equal footing as those with enough resources to see their case through the process.[4] As a result, Social Action Litigation was developed to provide an alternative approach towards the traditional court process by departing away from the adversarial system but still preserving the principles of fair play.[5] Consequently, it has become an avenue for the government to take a bolder step towards making human rights more meaningful for the poor and disadvantaged in India.

  • History of Epistolary Jurisdiction

The Constitution of India guarantees a right to move the Supreme Court, tlirough appropriate proceedings, for the enforcement of rights under it.[6] Moreover, the Constitution grants the Supreme Court authority to issue any order or writ, whichever may be appropriate, for the enforcement of rights and freedoms guaranteed under it.[7] More so, the High Courts are granted the same prerogative within their territories for the enforcement of rights.[8] Thus, the Constitution of India grants a wide berth of appropriate avenues for Courts to uphold and enforce rights under the Constitution. However, for a long time these provisions of the Constitution remained ineffective as it was uncovered that Indian courts had outpriced the poor and disadvantaged, allowing only the wealthy to afford redress from them. Effectively, this left the poor and disadvantaged in a de facto state of lawlessness. It was impossible for the poor to approach the Court for justice because they lacked the awareness, assertiveness, and access to the machinery required to enforce their constitutional and legal rights. 72 More so, the rules of locus standi were an impediment to the redress of violations occasioned on the poor and disadvantaged. The rules required that only persons who had suffered a specific legal injury, by reason of actual or threatened violation of a legal right or a legally-protected interest can bring an action for judicial redress. Additionally, it was only the holder of the right who could bring an action to court for redress. Obviously, this requirement of standing prevented many poor people who were unaware or ignorant of their rights and duties from moving the court to enforce their rights. This requirements also prevented access to courts for these groups of people due to the exorbitant court fees and legal costs. Moreover, the requirements of evidence for proving violations against them were impossible to satisfy since these groups of people rarely had the means or influence to collect material documentation to prove their cases.

As a result, the Supreme Court decided to move away from the traditional rules of standing and broaden them to enable suits from the poor and disadvantaged to be instituted. In a landmark decision in the case of Bandhua Muled Morelia v Union of India73, the court held that the ‘appropriate relief in Article 32 did not refer to appropriateness in reference to any rule whatsoever, but appropriateness in the puipose of the proceedings. Consequently, the court held that Article 32 not only allowed the Supreme Court to make high prerogative writs such as habeas corpus, mandamus, prohibition, certiorari and quo warranto, but also make directives, orders and writs in the nature of these high prerogative writs. Therefore, if in making a directive, order or writ, the conditions of these high prerogative writs were not fulfilled, the Court could, nevertheless, issue directives, orders or writs appropriate for die enforcement of rights and fundamental freedoms in the Constitution. Following this decision, in the case of People’s Union for Democratic Rights v Union of India,[9] [10] die court expanded the rules of locus standi to include, where a legal wrong or a legal injury was caused to a person or to a class of persons by reason of violation of their constitutional or legal right, and such person or class of person was by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group acting bona fide could institute an action on their behalf. More so, in preserving fairness, the court acknowledging that it would not be right to expect these public spirited individuals or social action groups to cater from their own coffers the legal costs and court fees when instituting cases for the poor and downtrodden, it allowed for such cases to be instituted through letters sent to the Supreme Court. Thus, the court developed a new procedure to be known as ‘Epistolary Jurisdiction’.[11] [12]

The courts in India have successfully adopted this interpretation of Article 32 and consequently epistolary jurisdiction. In the landmark case of Sunil Batra v. Delhi Administration, the case was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a head warder on another prisoner. The Court treated that letter as a writ petition, and stated that:

“…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found.”16 In Parmanand Katara v. Union of India, the Supreme Court accepted an application that highlighted a newspaper article titled, *Law Helps the Injured to die, ’ published by The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment, since many hospitals and doctors refused to treat them unless certain legal procedural formalities were completed. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed.[13] Similarly, in Nilibati Behra v State of Orissa and Drs, a mother wrote a letter to the Supreme Court seeking an order of Habeas Corpus with regard to her dead son. The letter was treated as a writ petition.[14] In Upendra Baxii (Dr) vs. State of UP, the Supreme Court accepted a letter written by two law professionals as a matter of public interest litigation and treated it as a writ petition before proceeding to issue guidelines with a view of improving the pathetic conditions prevailing in the government protective homes at Agra.[15]

  • Application of Epistolary Jurisdiction in India

Social Action Litigation was borne from a critical point in India’s experience. Often, it is used interchangeably with the term Public Interest Litigation which is synonymous in practice to the United States of America. However, as particularly intimated by Professor Upendra Baxii, Social Action Litigation should be used in reference to its practice in India, distinguishable substantively and procedurally with Public Interest Litigation. Social Action Litigation stands out as a mechanism to expose and cure the exploitation of and deprivation of fundamental rights and freedoms from disadvantaged groups of people occasioned as a result of governmental lawlessness and administrative deviance.[16] As a result, Social Action Litigation has brought about unprecedented and complex cases that have required extraordinary remedies, challenging perceived notions of the separation of powers and the inherited distinctions between adjudication and legislation as well as adjudication and administration. More so, it has required a new form of lawyering and judging, provoking dialogue on the role of the judiciary in a society such as India’s.[17]

Resultantly, the application of Epistolary jurisdiction, as a derivative procedural innovation of Social Action Litigation has influenced the adoption of new rules of procedure that enhance its application and preserve judicial efficiency. In a judicial notice issued by the Supreme Court of India dated lsl December 1988, the Chief Justice of India, at the time, provided guidelines to be followed for the entertainment of letter petitions under Social Action Litigation.[18] The guidelines proscribe the type of cases to be instituted through epistolary jurisdiction. Such cases include; bonded labour, neglected children, petitions from prisoners, petitions against the police, petitions against atrocities on women, children and scheduled castes and scheduled tribes, petitions on environmental matters, adulteration of dings and food, maintenance of heritage and culture and other matters of public importance. The notice also set out matters which ordinarily were not to be entertained such as landlord-tenant disputes, service matters and admission to medical and other educational institutions.

Furthermore, it was essential to ensure that this jurisdiction of the courts was not used for frivolous reasons petitions more so to avoid multiplicity of petitions, the court formed Public Interest Litigation and Information cells with frill-fledged staff to deal with letters under public interest litigation. In these cells, letters are to be scrutinized by the staff who are employed exclusively for this purpose. If the letter describes infringement of fundamental right, it is forwarded to the Supreme Court Legal Aid Committee and if it describes violation of a legal right, it is forwarded to the Legal Aid Board. This cells provide updates on the status of pending cases to the relevant petitioners.[19]

Another innovation by the Supreme Court of India was with respect to collection and production of evidence to prove matters brought to the court through epistolary jurisdiction. Essentially, the poor and disadvantaged groups of people did not have the power to collect the necessary evidence to prove their cases. Not only was it crucial to develop a whole system of litigation that could accommodate their needs, but also it was essential to provide a means for the court to acquire the necessary evidence to determine their cases. Obviously, the respondents to these cases who were mostly in positions of authority were bound to deny through affidavits the allegations of violations of fundamental rights and freedoms. Moreover, they denied the credibility of social action groups who instituted cases on behalf of the victims of such violations. Therefore, the court developed a new strategy in winch they could be able to investigate the violations and collect the relevant evidence needed to determine the cases. Following its authority under Article 32 of the Indian Constitution, the court started appointing socio-legal commissions of inquiry[20] [21] constituting judicial officers, researchers, teachers, government officers, and journalist. Such commissions were mandated to make inquiries into the violations in a particular case and gather relevant information and evidence, after which they would compile a report setting out findings and recommendations. In the case of Bandhua Mukti Morcha v. Union of India85 concerning the use of bonded labour in the Faridabad stone quarries, the Supreme Court appointed Dr S Patwardhan, a Professor of Sociology working at the Indian Institute of Technology, to carry out a socio-legal investigation into the conditions of the stone quarry workers. On the basis of his report, the Supreme Court gave various directions detailed in the case. The adoption of his system is a step away from the adversarial system of litigation and the conception of a more collaborative system of litigation.

Social Action Litigation is concerned with the enforcement of collective rights held by groups of people. Reliefs under the adversarial system of litigation are concerned with private held rights and, therefore, cannot be sufficient for cases under the social action litigation system. In light of this, the Supreme Court needed to come up with new reliefs for cases instituted under SAL. In the Bandhua Mukti Mocha case, the court gave various directions for identifying, releasing, and rehabilitating bonded labourers, ensuring payment of the minimum wage, the observance of labour laws, provision of wholesome drinking water and the setting up of dust sucking machines in the stone quarries. The Supreme Court also set up a monitoring agency to continuously monitor implementation of those directions. Moreover in the case of Hussainara Khatoon v. State of Bihar the Supreme Court directed that the State Govermnent should prepare an annual census of under- trial prisoners on October 31 each year and submit it to the High Court. Thereupon, the High Court would give directions for early disposal of cases where the under-trial prisoners had been under detention for unreasonably long periods of time.[22] These reliefs provided by the court were structured to suit the needs of the cases in which they were given. Through its power under Article 32 of the Indian Constitution, the court can provide any relief it deems appropriate to uphold the fundamental rights and freedoms of the people. This allows the court to give reliefs structured to cater for the different needs of each case.

Finally, the issue of enforcement of the court’s orders comes into question. Social Action Litigation is dependent on the enforcement of orders, directives or writs issued by the courts. Without this enforcement, the entire social action litigation structure would become devoid of meaning and prove itself redundant. Social Action Litigation groups and public spirited individuals who institute SAL cases and are able to secure orders of the court should ensure full implementation of such orders. They should bring to the notice of the court if such orders or writs are not implemented satisfactorily. Since orders under this jurisdiction of the court are made against state authorities, the court can find the State officers obligated with the implementation of

such orders in contempt of court if it is discovered that there is wilful disregard to the orders.[23] [24] More so, the court in its authority, can issue directions as to enforcement of the orders provided in a case. In the case of Bandhua Mukti Mocha, the court appointed Laxmi Dhar Misra, a Joint Secretary, in the Ministry of Labour, to visit the Faridabad stone quarries after a period of about two or three months. Tins was done to ascertain whether the directions given by the Court had been implemented and to make a report for the Supreme Court with regard to the implementation of those directions. In the case of People’s Union for Democratic Rights v. Union of India**, the court appointed three social activists as ombudsmen for the purpose of ensuring that labour laws were being observed by the state administration.

The Supreme Court of India has surely proved its commitment towards the protection of fundamental rights and freedoms of poor and marginalised groups of people. As time progresses, it is expected that the concept of Social Action Litigation and consequently epistolary jurisdiction of the court will be developed further. New methods and strategies shall continue to be employed for the perfection of this powerful legal tool.[25]

  • Criticisms of Epistolary Jurisdiction

Similarly to any other innovation that challenges the status quo, epistolary jurisdiction has come under criticism from various parties. Such criticisms have, more often than not, been related to Social Action Litigation and its purpose in the judicial system.

The most prominent criticism has been argued that the adoption of social action litigation by the Supreme Court of India has gone ahead to cause imbalance between the three amis of government. SAL has enabled the court to place upon itself duties and powers exercised by other arms of government thereby upsetting the principle of separation of powers. In the case of Kushum Lata

  1. Union of India,[26] a two judge bench criticised the trend towards judicial activism with regards to administrative actions stating that the executive were well versed in their field of duty and it was not the duty of the court to provide directions to the executive. More so, the court criticised a previous judgement of a three judge bench calling such a judgement a glaring example of deviations from the clearly provided constitutional scheme of separation of powers.[27] Definitely, the court should be wary of usurping the powers of the executive and the legislature. However, in rebutting this strain of criticism, it has been argued that the courts have shown consistency in upholding claims brought through SAL occasioned by the excesses of the executive. Previously, the court has focused its reprimand on junior officers and certainly not powerful politicians. It would then not be a suiprise that when the court directs itself towards senior officials and powerful interested parties in the executive, that accusations of usurpation of powers would arise. Such allegations are consequently borne out of frustrations from their own partisan actions.9
  • Conclusion

Nevertheless, the adoption of epistolary jurisdiction has been essential for the development and enforcement of fundamental rights and freedoms in India. Not only has it led to decisions that have changed the course of constitutional interpretation and application in India, but it has also allowed for the court process in India to be accessible by all, enhancing the right of access to justice. The Supreme Court has ceased to only exist as the Supreme Court of India and become the Supreme Court of all Indians.

In the same vein, application of Epistolary jurisdiction in Kenya will not only require substantive and procedural shifts in its legal framework but it will also require the change of mind sets among judges and legal practitioners. Development of a culture that recognizes and supports human rights and respects their enforcement requires strong leadership from the Judiciary of Kenya.

[1]  Gideon v Wainwright 372 US 335 (1963).

[2]   Baxi, Upendra, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,’ Third World Legal Studies: Vol. 4, Article 6, 1985.

[3]  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, 947: AIR 1973 SC 1461, 2009.

[4]   S.P. Gupta v. Union of India, 1981 Supp. SC 87, 210 (Explicitly stating that there is a need for opening standing to the disadvantaged where there is legal injury. The direct inference is an acknowledgement that it is unfavourable to continue to limit access to legal remedies).

[5]   P.N Bhangwatti and C.J Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice’, April-June 2012.

[6]  Article 32 (1), the Indian Constitution.

[7]  Article 32 (2), the Indian Constitution.

[8]  Article 226, the Indian Constitution.

[9]  P.N Bhangwatti and C.J Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice’, April-June 2012.

  • Bandhua Mukti Morcha v Union oflndia and others 1984 AIR 802, 1984 SCR (2) 67.

[10] People’s Union for Democratic Rights v Union of India 1982 AIR 1473, 1983 SCR (1) 456.

[11] S.P Gupta v Union of India (where Justice P.N Bhagwati led the court in stating that epistolary jurisdiction would allow the court to readily respond even to a letter addressed by an individual acting pro bono public and treat it as a formal writ petition for Public Interest Litigation purposes.)

[12] Sunil Batra v Delhi Administration (1978) 4, 494.

[13] Parmanand Katara v Union of India (1989) 4, 286.

[14] Nilibati Behra v State of Orissa and Drs (1993) 25,746.

[15] Upendra Baxii (Dr) v State of UP (1983), 2, 308.

[16] P.N Bhagwalti and C.J Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice’, April-June 2012.

[17] Baxi, Upendra, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,’ Third World Legal Studies: Vol. 4, Article 6.

[18] The list of guidelines has continuously been updated through the years by the sitting Chief Justice with the latest modification being on 29,h August, 2003.

S3 An MHRD Project, Access to Justice under Public Interest Litigation.

[20] P.N Bhagwatti and C.J Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice’, Apt il-June 2012.

[21] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802.

[22] Hussainara Khatoon v State of Bihar, (1980) 1 SCC 93: AIR 1979 SC 1360.

[23] Article 129, Constitution of India; Section 4 and Section 15 of the Contempt of Court Act, 1971.

[24] People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: AIR 1982 SC 1473.

[25] P.N Bhagwatti and C.J Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice’, April-June 2012.

[26] Kushum Lata v. Union of India (2006) 6 SCC, 180.

[27] Kushum Lata v. Union of India, (2006) 6 SCC, 180, Par 17-41.