Judicial Activism

Two terms dominate any discussion of the Indian judiciary today: judicial activism and Public Interest Litigation, or PIL (also called Social Action Litigation, SAL). Many people credit these two, together, with revolutionising how the judiciary works and making it far more people-friendly than it once was.

Under the ordinary rule of law, only a person who has been personally aggrieved could approach a court — someone whose own right had been violated, or who was a party to a dispute. That changed around 1979, when the Supreme Court agreed for the first time to hear a case filed not by the aggrieved persons themselves but by others acting on their behalf, because the matter involved a genuine issue of public interest. Around the same period, the Court also took up the question of prisoners' rights on similarly public-spirited petitions. This opened the door to a wave of cases in which public-spirited citizens and voluntary organisations sought judicial intervention — to protect existing rights, to improve the living conditions of the poor, and to protect the environment. PIL quickly became the single most important vehicle of judicial activism, with the Court sometimes acting on nothing more than a newspaper report or a letter of complaint.

Two early cases set the pattern. In 1979, newspaper reports on undertrial prisoners in Bihar — many of whom had already spent longer in jail awaiting trial than they would have spent in prison had they actually been convicted — prompted an advocate to file a petition; the Supreme Court's hearing of it became known as Hussainara Khatoon vs Bihar, one of the earliest PILs. In 1980, a Tihar jail inmate managed to smuggle out a scribbled note describing physical torture of prisoners; Justice Krishna Iyer had it converted into a formal petition, and the resulting case, Sunil Batra vs Delhi Administration, became another pioneering PIL — even though the Court later stopped the practice of treating ordinary letters as petitions.

Through PIL, the Court expanded the very idea of a right: clean air, unpolluted water, and decent living conditions came to be understood as rights belonging to society as a whole, not just to any one aggrieved individual. It also showed a new readiness to consider the rights of those who cannot easily approach a court on their own — allowing public-spirited citizens, organisations, and lawyers to file petitions on their behalf. Around the same period, the judiciary also ruled that bandhs and hartals (general strikes and shutdowns) are illegal, another example of the Court stepping directly into questions once left to politics and the street. …