Inception of Epistolary Jurisdiction
The concept of “Epistolary Jurisdictionâ€™” is one of the most important innovations in the Indian Judicial process. It emerged in the late seventies of the twentieth century in response to the need to make judicial process more accessible to poor, down trodden, socially and economically disadvantaged section of the Society. It is primarily the judges of the higher judiciary who have innovated the concept of epistolary jurisdiction or in laymanâ€™s terms â€˜Public Interest Litigationâ€™ through Judicial Activism while exorcizing the jurisdiction for dispensing judges to the poor and downtrodden. The concept of Judicial Activism came into prominence in India during the second half of the twentieth century. During this period the Doctrine of Judicial Review had assumed a new complexion, which is popularly known as Judicial Activism. The old orthodox and mechanistic theory that a judge never creates law and only declares law has been replaced by the concept of Judicial Activism. Thus, the Judicial Activism opened up new dimension for the judicial process and has given a new hope to the justice- starved millions opening scope of judicial redress to the hitherto before passive suffers.
The concept of Public Interest Litigation had its origin in the American legal system during the period of 1960â€™s. It has now been recognized in many parts of the world. The seed of Public Interest Litigation was initially was sown in India by Justice Krishna Iyer in 1976 in Mumbai Kamgar Sabha v. Abdulbhai  . In that judgment Justice Iyer did not use the terminology â€˜Public Interest Litigationâ€™. But in Fertilizer Corporation Kamgar Union v. Union of India  , the terminology â€˜Public Interest Litigationâ€™ was used by Justice Iyer. In this judgment he used the expression â€˜epistolary jurisdictionâ€™. The Honâ€™ble Supreme Court held that the procedure had to be relaxed to meet the ends of justice. This article would give the insights in furtherance of Public Interest Litigation in India since the inception of the concept.
Public Interest Litigation- The Beginning
The term â€˜Public Interest Litigationâ€™ (PIL) means the litigation which is beneficial to general public. It means action necessarily taken for public purpose. The Supreme Court of India in Janata Dal v. H.S. Chowdharv  , observed that lexically the expression public interest litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.
The word “Litigation” means legal action initiated in a Court of law with the purpose of enforcing right or seeking remedy. Therefore, the term public interest litigation means a legal action initiated in a Court of law for the enforcement of public interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liberties are affected.
The concept of public interest litigation had its origin in the American legal system during the period of 1960â€™s. The Council for Public Interest Law set up by the Ford Foundation in the United States of America stated that Public Interest Law is the name which was able to provide legal representation to previously unrepresented groups. Such efforts had been undertaken in recognition that the ordinary market place for legal services failed to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumer, racial and ethnic minorities and others.
Thus, the concept of public interest litigation evolved in the American legal system was in order to provide legal representation to previously unrepresented groups. It has now been recognized in many parts of the world. The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer in 1976 in Mumbai Kamgar Sabha v. Abdul Bhai  . However, in that Judgement Justice Iyer did not use the terminology “Public Interest Litigation”. But in the celebrated case of Fertilizer Corporation Kamgar Union v. Union of India  , the terminology “Public Interest Litigation” was used by Justice Iyer. In this particular judgement he used the expression â€˜Epistolary Jurisdictionâ€™. The Hon’ble Supreme Court held that the procedure had to be relaxed to meet the ends of justice.
The concept of Public Interest Litigation took its roots firmly in the Indian Legal System only after the period of post emergency. During the period of emergency in 1975 the rule of law suffered a partial eclipse and anyone who opposed the action of the government was susceptible to police action. This resulted in spate of petitioners in the Hon’ble High Courts and the Hon’ble Supreme Court under Articles 226 and 32 of the Constitution respectively in the form of Habeas Corpus. The Government of India argued that Article 21 of the Constitution guaranteeing right to life had been suspended for the duration of emergency. The Government of India wanted what is called a â€˜Committed Judiciaryâ€™ and accordingly Justice A.N. Ray was appointed as the Chief Justice of India by superseding three senior colleagues Justice Shelat, Justice Hegde and Justice Grover. The Apex Court lost its credibility when in A.D.M. Jabalpur v. Shrikant Shukla  , popularly known as Habeas Corpus Case, totally abandoned its responsibility towards the protection of individual liberty.
The post-emergency Court had to make a great effort to re-establish its institutional credibility.  During the last three decades the Indian judiciary has been playing a very creative role in the administration of justice which is the departure from the â€˜committed judiciaryâ€™ of the past to the activist judiciary of today. This has been possible due to the creative role played by some of the judges like Justice Krishna Iyer, Justice P.N.Bhagwati, Justice A.M. Ahmadi, Justice Kuldip Singh and Justice S.P. Bharusha under the principle of public interest litigation that was innovated by the Apex Court through judicial activism. The innovation of this type of litigation by the Court was a dire need in order to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and was therefore unable to seek legal redress. The Courts have stressed the importance of non-adversarial jurisprudence which would deal with cases relating to the â€˜have-notsâ€™.
The purpose of the Public Interest Litigation is to promote the public interest which mandates that violation of legal or constitutional rights of poor, down trodden, socially and economically disadvantaged sections of the society should not go unredressed. In this context Justice P.N.Bhagwati observed  .
“Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically backward position should not go unnoticed and unredressed”
The Court has liberalized the strict rule of Locus Standii under the principle of public interest litigation with a view to facilitating the common man who is not in a position to approach the Court for vindication of their rights owing to socially and economically disadvantaged position. The traditional rule of standing is that only the person aggrieved can move to the Court for judicial redress. With the advent of public interest litigation this traditional strict rule of standing has been broadened and liberalized. As a result of this any person acting bona fide having no personal gain or political motive can move the Court alone for the enforcement of constitutional or legal rights of socially or economically disadvantaged sections of the immunity  . The Supreme Court of India viewed that the strict rule of standing has adversely affected in the developmental activities and also to bring about socio-economic change. Therefore, the rule of standing needs to be liberalized in order to meet the challenges of time. The cause of justice cannot be allowed to over look on the technical ground of Locus Standii or absence of personal loss or injury.
The Supreme Court and the High Courts throughout various judgmentsâ€™ have widely enlarged the scope of public interest litigation by relaxing the rule of standing. The Court even proceeded without clear frame work. In Sunil Batra v. Delhi Administration  , the Supreme Court accepted a letter written by one Sunil Batra, a prisoner from Tihar Jail complaining inhuman torture by the Jail Warden to another prisoner serving life term in the same jail. The Court treated the letter as Writ Petition under Article 32 of the Constitution. Delivering the judgement the Court issued directions inter alia for taking suitable action against the erring official.
The most important pronouncement of the Supreme Court in the field of public interest litigation involving the question of Locus Standii is S.P. Gupta v. Union of India  , popularly known as â€˜Judges Transfer Caseâ€™.
In this case the Locus Standii of the petitioners was challenged. Delivering the judgement the Court held that,
“Where a legal wrong or legal injury is caused to a person or to a determinate class of persons and such persons are unable to approach the Court due to socially or economically disadvantaged position, any member of the public acting bona fide and having sufficient interest in the matter can maintain an application for appropriate directions or orders.” 
The decision of this case had made a far reaching impact on the question of Locus Standii. Similarly, the Supreme Court gave historic judgmentsâ€™ in Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union of India  , Peopleâ€™s Union for Democratic Rights v. Union of India  and Bandhua Mukti Morcha v. Union of India  conferring standing to the petitioners.
The scope and ambit of public interest litigation is to assure socio-economic justice to the poor and weaker sections of the community. It is the powerful weapon in the hands of poor masses that constitute low visibility area of humanity Tor combating exploitation and injustice. Public interest litigation is not in the nature of adversary character which is totally different from the ordinary traditional litigation. In public interest litigation it is intended to promote and vindicate public interest contrary to ordinary litigation where enforcement of the right of one individual against another is intended. Hence, it can be stated that the public interest litigation is a highly effective weapon in the armory of the judiciary to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them socio-economic justice. 
It has been stated above that the public interest litigation is the outcome of judicial activism. The need for innovation of public interest litigation in India arose due to failure of discharging the constitutional obligations as well as the voluntary abdication of powers by the executive and the legislature. In such a situation judicial pronouncements have brought a sense of relief to people even at times when the executive and the legislature appeared to have approached a dead end. Activism in the Court has taken on new dimensions through public interest litigation. Judges have begun to enter realms of decision making previously reserved for the legislative or executive wings of the government. This assumption of powers by the judiciary was not for vain glory. Self abdication of powers and the rampant corruption among the executive and the legislature forced the people to bring the issues before the Court. The Court had no option but to interfere in the day to day affairs of the executive and the legislature through the principle of public interest litigation.
The subject matter of the public interest litigation initially began with the conditions of prisoners where the Court took steps in broadening the scope of jurisdiction and relaxing procedural barriers. Lack of access to justice had been the major obstacle preventing those confined illegally or in terrible conditions from approaching the Court. By invoking Article 39A of the Constitution and discussing the need for legal aid, the Court responded to the horrific situations brought before it  . The first public interest litigation order in the Supreme Court came in a habeas corpus case  filed by an advocate on the basis of a news report in the matter of speedy trial of undertrial prisoners who had been imprisoned for longer than the maximum sentence that could be imposed upon conviction. On being apprised of the facts of the use the Supreme Court relaxed the procedural rule that a habeas corpus petition can only be filed with a power of attorney or by a close relative. The distinction between a letter petition and public interest litigation has never been fully clarified because of the connection between habeas corpus petitions and public interest litigation  . The Courts have always allowed letters to be sent for habeas corpus matters, but it is only with the advent of public interest litigation that the letter – petition was admitted for all kinds of relief. The letter became the key to gaining access to the Court, and often the Court was urged to give orders covering a whole class, be they prisoners or undertrials.
From the underlying principle of public interest litigation it transpires that the concept of Public Interest Litigation innovated by the Court to give relief to the poor and vulnerable sections only. The Court intended that public interest litigation will be the mechanism through which the grievances of the poor and down trodden could be redressed. But in practice public interest litigation has evolved beyond these parameters. Cases involving broad public interest issues began to come within the scope of public interest litigation. It has now entered into the domain of general public interest issues like environmental pollution, complaint relating to consumer, governmental accountability and the conduct of examinations that fall within the category of civic participation rather than the issues of direct concern for the poor.
The Court is now engaged in public interest cases and more and more lawyers, non-governmental organizations, journalists, social activists are corning to the Court with grievances of the poor and illiterate. The Court is not only giving relief to the poor litigants but also provides an effective check against governmental apathy and negligent attitude of the executive officials by making them accountable for their lapses or arbitrary acts. Further the Court pronounced judgmentsâ€™ giving effective orders in the area of environmental pollution and degradation, violation of human rights, preservation of historical monuments, directing the eviction of unauthorized occupation of government bungalow which was brought before the Court by way of public interest litigation  . The Court in many cases has entertained petitions without court fees or affidavit or taken suo motu action on the basis of news items published in the news papers. The Court has taken a goal-oriented approach in the interest of justice. In this context Professor Upendra Baxi observed that the Supreme Court of India for the first time became a Court for Indians. He preferred to describe this legal phenomenon as “Social Action Litigation”.
However, the Court has got to be careful at the time of entertaining petitions for Public Interest Litigation so that busy bodies, meddlesome interlopers or officious interveners cannot take the opportunities of personal gain in the name of public interest. The judges and the lawyers must be careful towards avoiding over-use of Public Interest Litigation. Though the decision of the Courts relaxing the strict rule of Locus Standii have been welcome greatly at the same time the Court must not get involved in non-justifiable issues like policy making which is reserved for the legislature. The Court is not only showing positive response in all Public Interest Litigation brought before it by the petitioners, there are instances of dismissal of public interest litigation by the Supreme Court and the High Courts. The judgement in Sachidanand Pandey  by the Apex Court has had far-reaching effects in support of the dismissal of a petition as unsuitable for adjudication by the Court. Similarly, the Apex Court in S.P. Anand v. H.D. Devegowda  observed that in public interest litigation the petitioner is not entitled to withdraw his petition at his sweet will unless the Court sees reasons to permit withdrawal. 
The author has only selected the topic for research considering the fact that public interest litigation has been able to bring justice within the easy reach of poor and disadvantaged sections of the community. The Court has innovated the concept timely which has made an indelible effect on the Indian judicial process. The Court has given new and liberal dimension to the law of standing with a view to bring the law into service of the poor and the down trodden. Many cases relating to poor and vulnerable sections of the community would have gone unredressed without public interest litigation. It emerged as a boon to them to high light their sufferings  . Though procedure existed in the Civil and Criminal Codes for presentation of petitions but endemic problems of long pending cases, high costs and lengthy process have discouraged the people. Therefore, the people have started to invoke the jurisdiction of public interest litigation through which efficient and expeditious justice have been achieved. But the public interest litigation is not an alternative to the existing system. It is an input which ameliorates some of the evil of the mainstream system thereby alleviating the suffering of the litigating public.
Judicial Activism: Whether A Boon Or Bane
The Supreme Court of India has become the center of controversy on account of the sudden outburst in the level of Judicial Activism towards the end of 1990s. This has been followed due to growing activities of the Supreme Court in dealing with various cases involving corrupt practices by politicians, bureaucrats and religious leaders. During the period the Supreme Court has gone through various sensitive cases like Jain Hawala Case  , St. Kittâ€™s Forgery Case  , and Urea scandal in which some of the Parliamentarians, Ministers and Bureaucrats including self styled Godman Chandra Swami had to be kept behind the bars for allegedly being involved in corrupt practices. In a significant order in Jain Hawala Case the Supreme Court declared that bearing in mind the basic tenet of Rule of Law that â€˜Be you ever so high, the law is above youâ€™  , investigation against each and every person, irrespective of the position and status of that person should be conducted and completed expeditiously for retaining public confidence in the impartial working of the government agencies. In St. Kitts Forgery Case. Ankul Chandra Pradhan an Advocate filed a public interest litigation seeking directions to the Central Bureau of Investigation (CBI) to investigate inter alia two criminal cases involving the former Prime Minister, Mr. P.V. Narasimha Rao, Chandraswami and Kailash Agarwala alias Mamaji. The Supreme Court directed that self-styled Godman Chandraswami would not leave India without express permission of the Court. The Court monitored the progress of the investigations by the Central Bureau of Investigation till charge-sheet was filed in the St Kitts Forgery case  . The Supreme Court had to issue directions to the Central Bureau of Investigation, to perform its duty properly.
Such activities of the Supreme Court have irked the politicians who are actually in the dock on account of their alleged wrong doing and also those fearing possible exposure. The politicians were also greatly upset when Mr. Prem Kumar the Chief Metropolitan Magistrate, New Delhi summoned the former Prime Minister Mr. P.V. Narasimha Rao to appear before him in connection with JMM Pay of case.
The Parliament witnessed stormy debate in the last week of July, 1996 in the matter of Judicial Activism. The matter was mainly raised by the members of Parliament belonging to the Congress party. They alleged that the judiciary by becoming over Activism has crossed the â€˜Laxman Rekhaâ€™. Former Union Minister Margaret Alva felt that it was high time to take a close and hard look at Judicial Activism. She commented that it is the Parliament and not the Judiciary, which is sovereign in India. She also added that the judiciary is not free from corrupt practices a but her views were not shared by other political parties. Rather, the Bharatiya Janata Party supported the activities of the judiciary as the executive and the legislature have failed to perform their constitutional obligations. They gave full mars to the judiciary for unearthing some of the scams involving huge sums of money.
Some members of Parliament belonging to the Congress (I) me then Lok Sabha Speaker Mr. P.A Sangma and Prime Minister Mr. H.D. Devegowda to call a special session of the Parliament to discuss about Judicial Activism. They said the recent development of Judicial Activism have eroded the harmonious co-existence of the three institutions- the legislature, the executive and the judiciary. Fears have been expressed by some people over the activist role of the Judiciary and some even have gone to the extent of saying that the judiciary is running the country by proxy.
While the advocates of Judicial Activism held that one must understand that this exercise of authority of the judiciary is not for vain glory but it is in discharge of its constitutional obligation. When the executive and the legislature are apathetic and fail to discharge their constitutional obligation the judiciary has no other option but to direct the two organs to perform their duties.
Former Human Resource Development Minister, Mr. S.R. Bommai  justifying Judicial Activism said that when Parliament become irrelevant and the executive ineffective, the people had no other option but to knock at all the doors of the judiciary. He told that the judiciary is doing its duty and two other wings, Parliament and Executive had their own role to play  . When the other wings became ineffective it was imperative that the judiciary had to perform its duties with people being forced to approach it. It is also not surprising that a group of Member of Parliament belonging to the Janata Dal moved the Supreme Court for greater assertion. They said that the present political system has collapsed for the common man and the judiciary is the only ray of hope to save from such disaster.
Judicial Activism has spread out all over the world. The Supreme Court of the United States of America has been a strong influence.
European Courts are again increasingly active in the sphere of human rights. Judges in common wealth countries such as Canada, Australia and even South Africa are enforcing individual rights more vigorously. British Courts used to be extremely cautious and conservative. In conflicts between individual and the State, judges almost deferred to the State. But over the last 20 years the situation stands transformed. Judges no longer hesitate to rule that the government has abused its powers. This transformation has come about without any actual changes in laws  .
It can be held that the judicial activism is nothing but the normal process judicial review as provided by the Constitution. It is a matter of philosophy. The activism depends upon the philosophy of the judges. The judgement given in one political regime may, differ in another political regime. Such type of philosophy of the Indian judiciary had been experienced from the role played by it during the emergency and that of the post-emergency. Today the judiciary is playing a different role that was played by it during the regime of Mrs. Indira Gandhi.
Hence, the judiciary cannot be accused of taking over the administration by giving directions to the executive in the name of Judicial Activism somebody even termed it as Judicial over Activism. It happens due to failure on the part of the legislature and the executive to perform their constitutional obligations compelling the judiciary to intervene trough the Public Interest Litigation. Again, the corruption stands as a great menace in day to day life. It has spread throughout the whole country. Many Executive, Bureaucrats and influential politicians have been found involved in various scams, scandals including violations of Foreign Exchange Regulation Act, as unearthed by the premier investigating agency in the country. The sad part is that the investigative system has been shamelessly used in the interest of certain individuals charged with serious crime; the Courts had no option but to intervene in the matter. So, it can be held that Judicial Activism is no longer a discretionary affair; in fact it is the need of the hour.
In India morality has become a casualty in politics. Democracy would not survive if this trend continues. So it has become a great regret that the Supreme Court of India is to intervene in every matter because morality has taken a back seat. In this connection politicians should show the proper path by their conduct and behavior.
Defending Judicial Activism in the course of Dr. Zakir Hussain Memorial Lecture on February 15, 1996 the then Chief Justice of India A.M. Ahmadi asserted that the Activism had been more or less imposed on the Judiciary and has assured the country that the phenomenon of Judicial Activism in its aggressive role will have to be temporary one.
Justice Ahmadi gave mainly two reasons for the current phase of Judicial Activism. He said,
“In recent times, we have noticed instances of one wing of the Government avoiding to take a decision on a politically sensitive issue by passing it to another wing, the latter not being expected to make that decision. The tendency has manifested itself at the Central as well as State levels In cases where the sensitive issue is â€˜notâ€™ pushed into the lap of another institution, we have noticed that it remained unattached and unresolved, making the people restive and forcing them to make it to the Courts  .”
He has however classified that the judiciary does not seek an expanded role for itself. Rather it has been forced to deliberate upon and pronounce judgements on some of the gravest politico-legal and socio-economic issues, the Mandal agitation and the Ayodhya crisis stand out prominently  .
He also observed that the present situation is not really a case of one democratic institution trying to exert itself over another, rather it is a case of citizens finding new ways of expressing their concern for events occurring at the national level and exerting their involvement in the democratic processes. He further stated that Judicial Activism was essentially the activism of individuals who were aware of their basic rights. It was individual who brought violations of their fundamental rights to the notice of the Court. The Court does not go in search of litigations. On whether the Supreme Court was over stepping its limits, the then Chief Justice said Article 142 of the Constitution had conferred the Apex Court with power of Judicial Review.
Justice Ahmadi described the sweep and necessity of Public Interest Litigation and quoted with the approval of observation of Professor Upendra Baxi that the Indian Supreme Court had become the most powerful in the world. However, he sounded a note of caution. There was no point in issuing orders that were incapable of being enforced  .
Defending Judicial Activism eminent journalist Kuldip Nayar said that Judicial Activism fills the vacuum that non-activism of other institutions creates. People have stopped asserting themselves and their inactivity makes them look like part of the establishment. Had the judiciary also been inactive, even the sensitivity that has got aroused against corruption would have ended  . The then President of the Supreme Court Bar Association Mr. F.S. Nariman said when the bureaucracy shows a callous indifference and I insensitivity to ‘its mandatory duties, the judiciary cannot procrastinate. It must respond. In such circumstances, the judiciary cannot be accused of exceeding its jurisdiction as long as the exercise of judicial power by it is for bonafide purposes and in good faith. The Supreme Court of India cannot be accused of over-stepping its constitutional limits if it mandates the executive to carry out its constitutional obligations and pulls up the law enforcing agencies for violation of human rights of citizens  .
Critics of Judicial Activism have raised voices that judicial intervention in every day administrative affairs demoralizes the executive wing of the government. Courts issue orders which cannot be implemented such as banning of child labour. They say it is a naked usurpation of the Courts over the legislative functions in the name of interpretation.
However, it should be kept in mind that the need of the hour is cooperation, not confrontation among the three organs – The Legislature, The Executive and The Judiciary, the three pillars of Indian democracy. In India it is the Constitution which is Supreme. The above three organs are the creation of the Constitution. Therefore, they should act harmoniously.
Though the Supreme Court of India has a place of primacy in the constitutional scheme, it can be rendered ineffective by the Parliament or even by the executive in the matter of laws and in some other ways. The Supreme Court only passes judgements and orders but it has got no agency of its own to enforce these. It has to depend upon the executive for this purpose and it may be possible for executive officer to delay in executing, the orders of the Court. On the other hand the Parliament can give retaliatory answer to the Supreme Court by means of Article 368 under which the Parliament has been empowered to amend the Constitution following certain procedure as prescribed by the Constitution itself. At the same time an amendment is also subject to judicial review. Therefore, co-operative attitude on the part of the main organs of the-polity is a must.
Again personal attack on judges in connection with their office must be avoided. In such cases, a judge may not misuse his official powers to set right a fault done to him on a personal level. If he feels insulted as an individual, he can bring a suit for libel as an ordinary citizen does. Justice Krishna Iyer wrote in this regard:
“The first rule in this branch of contempt power is a wise economy of use by the Court in this branch of its jurisdiction. The Court is willing to ignore, by a majestic liberalism, trifling and venial offences – the dogs bark, the caravan will pass  “.
To quote Lord Atkin in this regard:
“Justice is not a cloistered virtue. She must suffer the scrutiny and respectful, even though out spoken, comments of ordinary men. Indiaâ€™s well merited confidence in her judiciary cannot be strengthened by preventing criticism  .”
The judiciary may not be treated as a holy cow. It should also suffer from inquiry incase of misdemeanor. There have been cases where judges have got involved in corrupt practices. In order to avoid such misdemeanor a â€˜model code of conductâ€™ is very much pertinent. The code will promote harmony and co-operation between the Bench and the Bar. The code should also contain the provision making the judiciary accountable to the people of the country. In fact, Judicial Activism is the need of the hour. The executive inaction and ill action have come to such a sorry pass that there is no other option except intervention by the judiciary. In the recent past the judiciary through Judicial Activism has rendered commendable service to the nation. Hence, it can be asserted that Judicial Activism is not a bane but a boon to the people of India.
An active judiciary is a healthy sign of a nation and considering this it may be stated that Judicial Activism is no longer a discretionary affair, in fact it is the need of the hour. It fills the vacuum which is created due to non-activism of other organs like executive and legislature. It can therefore, be stated that Judicial Activism is the creator of Public Interest Litigation which has opened up new dimension for the judicial process and has given a new hope to the justice-starved millions. Armed with the concept of Judicial Activism the Court has expanded the field of Public Interest Litigation by liberalizing the strict rule of Locus Standii thereby permitting a person or determinate class of persons acting pro bono publico to maintain an application for appropriate directions or orders or writs in the Courts. It marks a step forward in the direction of reaching socio-economic justice to the deprived and vulnerable sections of humanity. Thus, the concept of Public Interest Litigation which has been fostered by Judicial Activism has become an increasingly important one in the arena of constitutional and legal treatment for the un-represented and under-represented.
At the same time the judiciary shall have to take active role for speedy disposal of mounting arrear of cases. It is evident that Trial Courts in the country are thronged by millions, who wait for decades for the disposal of their cases. The judiciary should strive to establish its institutional credibility by removing the fear from the mind of the people that justice delayed is justice denied.
Indeed, the Court has innovated the strategy of Public Interest Litigation for the purpose of providing access to justice to mass people who are denied their basic human rights. Public Interest Litigation provides a means through which the voices of people are heard on the Judicial Forum. Since the Constitution of India has not expressly provided for the concept of Public Interest Litigation the judiciary, particularly the Supreme Court of India has innovated the concept of Public Interest Litigation while exercising the jurisdiction for dispensing justice to the poor and the down trodden. It is primarily the judges who have innovated this type of litigation through the concept of Judicial Activism. This has opened new vistas for taking the justice nearer to common man.
In India the need for judicial activism evolved in order to activate the executive and the legislature due to voluntary abdication of their powers as well as failure to discharge their constitutional obligations. Therefore, the judiciary had to interfere in day to day affairs of the executive and the legislature for their wrong doings. This exercise of authority of the judiciary is not for vain glory but it is in discharge of the constitutional obligation. When the executive and the legislature were apathetic and failed to discharge their constitutional obligations the judiciary had no option but to direct the two organs to perform their duties. If the other wings of Indian democracy perform their duties and obligations, then there will be no need for judiciary to advise them.
It has now become a tendency of the government to avoid to take decision on a politically sensitive issue by passing it to another wing, the latter not being expected to make that decision. The issues remain unresolved forcing the people to bring it to the Court. The Court does not seek an expanded role for itself; rather it has been forced to pronounce judgements on some of the gravest politico-legal and socio-economic issues like Mandal agitation and the Ayodhya crisis.
Rampant corruption in high places stands as a great menace in India. Many executives, bureaucrats and influential politicians have been found involved in various scams and scandal as unearthed by the premier investigating agency in the country. The Court had to intervene to curb corruption in life. Had the judiciary also been inactive, even the sensitivity that has got aroused against corruption would have ended. Critics of judicial activism have raised their voices that the judiciary by becoming over active has entered into the domain of the executive and the legislature. Intervention in the everyday administrative affairs demoralizes the executive wing of the government. It is alleged that the judiciary is running the country by proxy.
However, it should be kept in mind that the need of the hour is cooperation, and not confrontation among the three organs â€“ the legislature, the executive and the judiciary. In India it is the Constitution which is supreme. The above three organs are the creation of the Constitution. Therefore, they should act harmoniously. Though the Supreme Court of India has a place of primacy in the constitutional scheme, it can be rendered ineffective by the Parliament or even by the executive. The Supreme Court only passes judgements and orders but it has got no agency of own to enforce these. It has to depend upon the executive for this purpose who may delay in executing the orders of the Court. The Parliament also can give retaliatory answer to the Supreme Court by means of amending the Constitution under Article 368 as provided by the Constitution. In fact, Judicial Activism is need of the hour. The executive inaction and ill action have come to such a sorry state that them is no option but to intervention by the judiciary. The judiciary through Judicial Activism has rendered commendable service to the nation. Indeed, it can be asserted that Judicial Activism is not a bane but a boon to the people of India.
In fact, public spirited citizens having faith in rule of law are rendering a great social and legal service under the principle of Public Interest Litigation. They cannot be overlooked on the technical ground of Locus Standii or absence of personal loss or injury. The view of the Courts in this branch of jurisprudence is highly appreciable. The Court has come forward to relieve the people, those who are subjected to denial of access to justice owing to their social and economic disadvantaged position. The Court has conferred Locus Standii to a person or body of persons acting pro bono publico and having sufficient interest in the proceedings to approach the Court for vindication of the rights of poor and the down trodden.
During the last three decades the Supreme Court and the High Courts have tried their best to bring law into the service of the poor. The Courts have acknowledged that the judiciary too has accountability towards the people of the country like the executive and the legislature. The Court does not insist upon the old rule of Locus Standii so that the administration of justice is done in the interest of all. The Court viewed that the rule of standing has to be liberalized in order to meet the challenges of time and need. Though the decisions of the Courts relaxing the strict rule of Locus Standii have been welcomed greatly, at the same time judges and the lawyers have to be careful towards avoiding over use of Public Interest Litigation.